Punjab-Haryana High Court
Kanwaljit Singh Chatrath And Others vs State Of Haryana And Others on 11 December, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
Civil Writ Petition No. 6803 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Writ Petition No. 6803 of 2011
Date of decision : 11.12.2012
Kanwaljit Singh Chatrath and others
.....Petitioners
VERSUS
State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Karan Vir Singh Khehar, Advocate
for the petitioners.
Ms. Kirti Singh, DAG, Haryana
for the State.
Mr. Babbar Bhan, Advocate
for respondent No. 3
****
RANJIT SINGH, J.
This order shall dispose of two Civil Writ Petitions i.e. Civil Writ Petition No. 6803 of 2011(Kanwaljit Singh Chatrath and others vs. State of Haryana and others) and CWP No. 9062 of 2011(Deshbir Singh and others vs. State of Haryana and others). The facts are being taken from Civil Writ Petition No. 6803 of 2011.
Petitioners are owners in possession of flats which are constructed by Haryana Officers Cooperative Group Housing Society Limited (Shikhar Apartments) GH-2, Sector 5, Mansa Devi Complex, Panchkula (for short the 'Society'). The petitioners acquired the membership of the Society after paying money towards the admission fee as well as the share capital. As per the Bye Laws of Civil Writ Petition No. 6803 of 2011 2 the Society, a member is required to hold at least one share in the Society. The share capital by the Society is raised by the members and the value of one share being ` 100/-.
While admitting the petitioners as members, in addition to the admission fee and contribution towards share capital, Society charged ` 1,00,000/- under the garb of 'Transfer Fee'. The petitioners paid the amount on different dates between the years 2001 to 2007. The petitioners have now approached with the grievance that under the Haryana Cooperative Societies Act and the rules framed thereunder the transfer fee could not have been charged from the members i.e. the petitioners.
The members filed representation to seek refund of the amount so charged. When the refund was not made, petitioners filed petitions under Section 102 read with Section 103 of the Haryana Cooperative Societies Act. These petitions were clubbed together and were disposed of through a common order dated 15.05.2008.. The order passed is annexed with the petition as Annexure P-1. The Registrar Cooperative Societies has held that charging of ` 1,00,000/- as transfer fee is a bad practice and clear violation of Model Bye Laws No. 30 and 54 which were duly approved by the Registrar, Cooperative Societies, Haryana. The charging of this fee has been termed as illegal and contrary to the bye-laws and, accordingly, found unjustified.
The petition of the petitioners was accepted to the extent that the Society shall not charge from any member ` 1,00,000/- as transfer fee in future. Though order was passed in favour of the Civil Writ Petition No. 6803 of 2011 3 petitioners but, however, they still remained aggrieved against the finding returned by the Registrar that this amount will not be charged in future. Accordingly, the amount which had been paid by the petitioners was to remain with the Society. Aggrieved against this part of the order the petitioners filed an appeal before respondent No.
1. The said appeal was dismissed vide common order dated 31.03.2010 (Annexure P-4). The petitioners, accordingly, have filed the present writ petition to impugn the order passed by the Registrar as well as the appellate order to the extent that it has been directed to operate prospectively and the refund of the transfer fee which the petitioners have earlier deposited has not been ordered.
By way of preliminary objections, the Society in its reply has stated that the impugned order passed by respondent No. 1 is perfectly legal and valid and does not warrant any interference. It is stated that the answering respondent is Co-operative Group Housing Society with the basic idea and objective of providing the house/flats to its member at the cheapest cost with the best of the amenities and it is not a profit oriented body. In order to achieve the objective of providing maintenance of the Society and to provide basic amenities such as water, electricity, payment to the security staff and other staff, the general house of the Society passed a resolution on 14.11.1999 for charging transfer fee which is to be paid either by the buyer or the seller. As per the reply, decision of charging fee was taken in the said resolution and rather liability affidavit was filed by the respective persons explaining the purpose behind claiming the transfer fee. It is stated that this is used for common purposes and Civil Writ Petition No. 6803 of 2011 4 answering Society had never forced or demanded the transfer fee from the petitioners. As per the reply, all the members had voluntarily paid this amount and now have raised this dispute.
The Society would also plead that the writ petition is liable to be dismissed being misconceived. It is stated that general house of the answering Society is the supreme body and the supreme body is meant for governance and administration of the internal affairs of the Society. The petitioners have not challenged the resolution dated 14.11.1999 passed by the General House and thus it has attained finality. It is stated that appeals filed by the petitioners were not even maintainable. The impugned order is termed as legal and valid. The order impugned is passed by respondent No. 2 and had fixed an amount of ` 1,00,000/- as transfer fee which is stated to be prospective in nature and, accordingly, it is stated that the petitioners are not entitled to refund of this amount. The claim is also termed as time barred.
Similar is the plea raised by the Government in the reply filed by respondent No. 1. It is pointed out that the Registrar, Cooperative Societies, Haryana, Panchkula had issued instructions/order dated 09.05.2008 wherein it was ordered that the Societies should stop charging the exorbitant fee in the name of transfer fee. The Bye-laws of the Societies are being suitably amended immediately in this regard. However, no challenge is made to the order passed by the Registrar except that it will have prospective effect.
Reply filed on behalf of respondent No. 2 is filed by Civil Writ Petition No. 6803 of 2011 5 Superintendent working in the office of Registrar. It is stated in the reply that claims of the petitioners to refund the amount with retrospective effects amounts to recovery of the amount received by the society for which the writ petition is not a proper remedy. The claim is being time barred as well. It is, accordingly, stated that refund can not be claimed at this belated stage.
Counsel for the petitioners has placed before me a judgment passed by the High Court of Delhi in the case of Capt. Kapil Raina vs. Delhi Development Authority and others, 99 (2002) Delhi Law Times 741 (DB). The Division Bench of Delhi High Court has observed that Delhi Cooperative Society Rules nowhere authorizes any demand being charged from members seeking transfer of membership rights. The payment of ` 1,00,000/- raised by the Society from the petitioner was, accordingly, quashed. Reliance is also placed on another case titled as Dr. Rakesh Kishore vs. Registrar Co-operative Societies and others, 105 (2003) Delhi Law Times 390 (DB) where refund of amount charged as entry fee is considered. The Registrar of the Cooperative Society had issued direction that charging of entry fee in any form is illegal. The Court observed that violation of this directive will be viewed seriously. Finding that an amount of ` 50,000/- was not paid voluntarily by original allottee but charged by respondent No. 3 therein from the petitioner in clandestine manner, It is observed that respondents have resorted to totally illegal practice by demanding entry fee from the petitioner therein and other similarly placed persons. The Court held that the Society was liable to refund the Civil Writ Petition No. 6803 of 2011 6 amount forthwith. The petition was allowed with costs of ` 10,000/-.
As per counsel appearing for the petitioners, the order passed in Capt. Kapil Raina's case (supra) was taken in Special Leave to Appeal before the Supreme Court but the same was dismissed.
Counsel appearing for respondent-society has raised a similar plea as are raised in the written statement. He has elaborated the reasons for which the admission was being charged. Counsel was at great stress to explain that the amount is meant for welfare of the members of the Society. He also contend that the amount was charged when some of the petitioners were managing the Society and, hence, they would not be entitled to seek refund of the amount which they have voluntarily paid. Counsel would also contend that no coercive methods were used and this amount was paid voluntarily. The counsel confirms that there is no allegation of misuse of any part of money. He, accordingly, would urge that no case for refund in this case is made out, especially so when the claim in the manner as raised would be barred at this belated stage.
Counsel would also distinguish the judgments passed by the High Court by urging that the amount was charged despite direction to contrary in those cases and so the refund of the amount charged ordered whereas no amount in the present case has been charged by the Society after the direction issued by the Registrar.
Counsel for the petitioners, however, joins serious issues with the counsel for the respondents on this count as well. He submits that now the Society is charging the money under a different Civil Writ Petition No. 6803 of 2011 7 head as a development charges as is evident from Annexure P-6.
I have considered the rival submissions made before me. Once the Registrar has held that the charging of transfer fee is illegal, obviously any amount which has been charged on this count would be illegal and not permissible. The issue is whether amount which has been paid by the members of the Society and which can not legally charged could still be permitted to be retained by the Society. Can it be allowed under the garb that it is meant for welfare of the Society?
If some of the members do not wish to pay this amount or want to withdraw their amount then certainly the society can not hold back this amount. It may not have been charged forcibly or by using coercive methods but in the manner in which the Society has now opposed the prayer for refund would obviously show that it certainly wants to retain the amount which is illegally charged. Illegal action can not be allowed to precipitate.
To me it is not a case of claim which can be declined on the ground of being time barred. Here it is a question of demand which was raised illegally and would remain illegal for all times to come. If a money which is illegally charged unauthorisedly, the refusal to refund the same would be a fresh cause on each refusal. The issue of claim being time barred would not arise in this case. It is not the claim which is being made by the petitioners. It is their own money which is lying with the Society and it was illegally charged is kept or retained. Prayer is to release the amount. Cause of this action would arise every day when the demand is declined. Civil Writ Petition No. 6803 of 2011 8
The Society has allowed the order of the Registrar to go unchallenged they can not now turn around and contest the refund. The Registrar has not declared refund on the ground that it is time barred. Action is termed illegal and its charging stopped. It will not be fair to permit its retention.
Accordingly, action of the Society in retaining this amount even for the purpose of welfare or on the ground that it will create huge liability which the Society can not be good ground to decline relief. I do no find any ground to accept this illegality. Thus, I am clearly of the view that the case of issuing direction to refund of this amount is made out.
The writ petitions are accordingly, allowed. The Society is directed to refund to the petitioners the amount which was illegally charged. Let this be refunded within a period of two months from the date of receipt of certified copy of this order.
December 11, 2012 ( RANJIT SINGH ) reena JUDGE