Delhi High Court
Satish Chaner Saxena vs Delhi Administration & Ors. on 27 April, 2001
Equivalent citations: 2001VAD(DELHI)174, 92(2001)DLT288, 2001(59)DRJ344
Author: Manmohan Sarin
Bench: Manmohan Sarin
ORDER
Manmohan Sarin, J. (Oral)
1. Petitioner by this writ petition challenges the order dated 29.6.1987, passed by the Registrar of Co-operative Societies, who rejected the petitioner's claim for being accepted as a member of respondent No.4/Society. The said order had been challenged in revision before the Lt.Governor, who vide order dated 14.10.1987, dismissed the revision, petition, holding the same to be not maintainable, since it challenged an administrative order.
2. Rule in this case was issued on 18.11.1988, and earlier vide order dated 22.4.1988, a plot measuring 300 Sq.yards, had been directed to be kept unallotted. Petitioner, Sh. Satish Chander Saxena is the son of Sh.P.C. Saxena, who was a member of respondent No.4/Society. The case of the petitioner is that his father Sh. P.C. Saxena, in the year 1972, had requested the Society for transfer of membership in favor of his son/petitioner. Such transfer was permissible under the rules since the petitioner was a blood relation.
3. Petitioner's case is that the Delhi Administration vide its order dated 29.10.1972, conveyed the approval of the administrator to he Society for the said transfer. A perusal of letter dated 29.10.1974, of the Delhi Administration, appearing at page 30 of the paper book, shows that the transfer had been approved, subject to furnishing of indemnity bond by the transferor/transferee and fulfillment of the requirements as given in the remarks column against the persons mentioned in he said letter.As far as petitioner is concerned, the remarks given were to the following effect:-
"Subject to fixation of Notarial Stamp by both"-(meaning the transferor and transferee.)
4. Learned senior counsel for the petitioner, Mr.V.K. Makhija, has taken me through the correspondence, filed with the petition, in support of his contention that the petitioner duly compiled with the requisite formalities. Photocopy of letter dated 28.4.1975, of the Society/respondent No.4 to the Land and Building Department mentions the name of petitioner's father at S.No.3 with enclosure of two indemnity bonds as well as the notarial stamps, as mentioned in para 2, being sent by the Society. AS regards the question of non-furnishing of notarial stamps, the matter, really stands concluded vide a photocopy of letter dated 28.1.1976. of respondent no.4/Society to the petitioner's father. By the said letter, while giving the account of petitioner's father, a sum of Rs.6/- on account of two notarial stamps of Rs.3/- each, incurred by the Society was demanded. The said letter also states as under:-
"Regarding the allotment of plots by draw of lots' the Delhi Administration has not yet fixed the date. As soon as we hear from them regarding fixation of the date, the same will be intimated to you."
5. The Society again vide its letter dated 17.9.1977, informed the petitioner's father that the transfer has not yet been approved finally by the Land and Building Department. Even in this letter, there is no mention of non-compliance of any formality. Not only this, the Registrar of Co-operative Societies vide letter dated 15.5.1986, addressed to the petitioner, confirmed that the case for transfer of membership of petitioner's father to the petitioner had been approved by the Land & Building Department vide letter dated 29.10.1974. The petitioner made further representations regarding allotment of plot to him and he was advised by the DDA Co-operative Societies Cell to approach the Registrar of Co-operative Societies for clearance of his membership in respondent No.4/Society. It is in these circumstances that the petitioner approached the Registrar of Co-operative Societies, when the impugned order was passed.
6. Ms.Zubeda Begum, appearing on behalf of respondent Nos.1 to 3, submits that in this case the petitioner's father had requested for refund of share money and his resignation had been duly accepted by the Society on 12.10.1980. Further, that the cheque had been sent to the petitioner's father, who himself is responsible, if he chooses not to encash the same. She submits that the said cheque was not returned by the petitioner's father, though it remained unencashed. It was also contended that the transfer in favor of the petitioner was subject to completion of formalities, which never got completed. It is submitted that accordingly no vested right accrued in the petitioner for getting the allotment, as transfer was not complete. It is urged by her that the Registrar of Co-operative Societies has given his reasons for reaching the conclusion, he did, and there is no error which call for interference by the Lt.Governor in exercise of revisional jurisdiction.
7. Mr.D.K.Rustogi, learned counsel for respondent No.4/Society, submits that in the instant case, the transfer of share certificates and the interest of member, as contemplated under Rule 40 of the Delhi Co-operative Society Rules, 1973, for cessation of membership, was not complete. He urges that share certificate had not been transferred in favor of the petitioner. As such, the formalities for completion of transfer and/or for approval by the Land & Building department had also not been fully completed.
8. Mr.Rustogi defends the impugned order by assailing the transfer as being motivated with the sole object of avoiding disqualification under Rule 25, in view of the petitioner's impending allotment of a DDA LIG Flat. He submits that Mr.P.C.Saxena had concealed and withheld the factum of being an applicant with DDA. Withholding of this information would vitiate the transfer sought by him. Mr.Rustogi further submits that unless there is complete and effectual implementation of Rule 40 by the actual transfer of shares, the approval by the Land and Building Department is merely an administrative approval and it cannot operate as a deemed approval for purposes of Rule 40.
9. In this case, as noticed earlier, the Land and Building Department had vide its letter of 29.10.1974, conveyed the approval of the administrator to the transfer of membership of Mr.P.C.Saxena in favor of the petitioner. The Society itself also vide letter dated 23.11.1974, intimated its agreement to the transfer in the name of the petitioner on the execution of certain documents. It is not in dispute before me that the petitioner and his father had complied with all the requisite formalities required to be done at their end for completing and effectuating the transfer. In case there has been any lapse on the part of the Society in either formally transferring the share certificates, as required under Rule 40 or for the delay entailed at the end of the administration in completing the transfer, petitioner cannot be made be suffer on that account. It may also be noted that the arguments advance with regard to the petitioner's father having attracted a disqualification in terms of Rule 25 also is without merit. Rule 25 (1) (c) attracts disqualification only if the member owns a residential house or plot in his own name or in the name of spouse, dependent, children etc. It is not disputed that no flat was either allotted or owned by the petitioner's father when the application for transfer was approved on 29.10.1972 and 29.11.1974. In fact, it is stated that the allotment of flat came sometime in May, 1975. I am also not able to accept the contention of Mr.D.K.Rustogi that there has to be strict compliance with Rule 40 failing which Rule 25 (1) (c) would be attracted.
10. On going through the correspondence, as filed by the petitioner, and on perusal of the records, it is clear that the petitioner and his father had duly completed the formalities, which they were required to do. The indemnity bond as well as the notarial stamps had been duly furnished. The Society in its records even debited the petitioner's father for the cost of notarial stamps. Respondent No.4/Society for its own default cannot penalise the petitioner or his father, after the approval by the Land and Building Department of Delhi Administration, subject to submission of notarial stamps. It may be noted that the Registrar of Co-operative Societies in the impugned order observed as under:-
"At this point of time, I fully appreciated that Sh.S.C.Saxena and his father Sh.P.C.Saxena had perhaps completed the documents and also affixed the Notary stamps where required but the fact remains that the same never reached the L&B Deptt. so that the conditional letter dated 29.10.1974 could require a finality."
In my view though in this case there is correspondence to show that notarial stamps were affixed Non-affixation of notarial, stamps could at best be an irregularity and not fatal so as to dis-qualify the petitioner from membership or his eligibility for allotment of a plot.
11. In view of the foregoing discussion, the orders dated 29.6.1987 and 14.10.1987 are not sustainable and are, accordingly, quashed.
A plot had also been reserved vide order dated 22.4.1988, passed in CM.821/88. Petitioner shall be entitled to be allotted the said plot. Necessary formalities for the same be completed within three months from today. Original records be returned.
12. The writ petition stands allowed in the above terms.