Delhi High Court
Alimuddin vs The Registrar Co-Operative Societies ... on 29 February, 1996
Equivalent citations: 63(1996)DLT655
Author: R.C. Lahoti
Bench: R.C. Lahoti, Lokeshwar Prasad
JUDGMENT R.C. Lahoti, J.
(1) A short question relating to interpretation of Rule 25(l)(c) Delhi Co-operative Societies Rules, 1973 (hereinafter referred to as the Rules') arises for decision in this petition.
(2) The petitioner Alimuddin, was a member of Panjatan Cooperative House Building Society Ltd. His membership in the Society has been ceased on the ground that during his membership of the Society, his wife had purchased a plot in one of the unauthorised colonies of Delhi, namely, Zafar Nagar and this act had rendered him disqualified to continue as a member of the Society under Rule 25(3) of the Rules.
(3) The facts found by the Registrar, Cooperative Societies and as contained in her order dated 16.8.1991, (Annexure-D), are that one Pyarey Lal had executed a power of attorney in favour of the wife of the petitioner in respect of the said plot and later on she had executed another power of attorney in favour of some other parties for the same plot. The petitioner's defense was that a power of attorney only gives power to act on behalf of some one else and the power attorney holder does not acquire any 'ownership' in the property forming subject matter of the power of attorney. It was also submitted that the petitioner's wife had only entered into an agreement for sale of the said plot but she had never purchased it through a registered document and, therefore, she never legally owned it and therefore Rule 25(3) of the Rules was not attracted. The Registrar of the Co-operative Society found that the transaction entered through power of attorney gave an outwardly different colour to the transaction but in substance and in effect she did acquire a plot for her own benefit and that was a transfer in her favour. The learned Registrar further opined that Section 25(3) had a social objective, viz. to make available a plot or a house to as many needy people as possible and this objective could not be permitted to be defeated by resort to legal technicality and avoid disqualification under Section 25(3). The learned Registrar concluded by upholding the Society's action ceasing the membership of the petitioner as right and proper.
(4) The order of the Registrar has been upheld in the revision by the Lt. Governor, who has recorded the following finding:- "IT has been admitted on behalf of the petitioner that a power of attorney coupled with monetary consideration was executed by Shri Pyare Lal in favour of the petitioner's wife in 1970. It was also accepted on behalf of the petitioner that another power of attorney coupled with monetary consideration was executed by his wife in favour of certain persons on 18.3.1976. There was also an affidavit where the petitioner's wife had sworn that "I have sold plot No. 185, Zakir Nagar and that I have no objection if the said property is transferred in the name of the purchaser". All this goes to show that the petitioner's wife has been indulging in the purchase and sale of property howsoever described. In the circumstances, the Registrar found it necessary to invoke the provisions of Rule 25(3) and hold that by entering into purchase and sale agreement with monetary consideration alongwith an irrevocable power of attorney in the name of his wife, the petitioner has incurred a disqualification."
(5) The learned Counsel for the petitioner has rightly pointed out that the views of the Registrar and the Lt. Governor cannot be sustained in the light of at least three decisions of this Court interpreting the provisions of Rule, 25(1 )(c) and 25(3). These decisions are : O.P. Sethi v. Lt. Governor, , Navjeevan Cooperative House Building Society Ltd. v. Delhi Co-operative Tribunal, Cwp 3150/ 85 decided on 10.7.87 and Shri Sita Ram Jain v. Registrar of Co-operative Societies, Cwp 3203/92 decided on 15.11.1995. The decision in Navjeevan Co-operative House Building Society Ltd. is the first in point of time and has been followed in the later two decisions. In that case, a learned Judge of this Court has held :
"THE provisions of Rule 25 in so far as they disqualify persons from being members of the Co-operative society need to be strictly construed and unless any person is clearly covered by the terminologies which are used to disqualify, no disqualification should attach to such a person."
"THE clear intend of this rule is, therefore, that those who hold properties "Benami" either in their wife's name or in the name of their dependent children, were not intended to be permitted to become a member of the Cooperative House Building Society."
(6) In O.P. Sethi's case (supra), the Division Bench has held :
"RULE25(l)(c) is attracted in those cases where the properties are held Benami.... the said rule cannot apply in the cases where properties are acquired by transmission/devolution."
(7) The view taken by this Court has been that to attract the applicability of Rule 25(1) (c) (i), the member of the Society must own a residential house or a plot of land for the construction of a house in his own name or in the name of his spouse or a dependent child. The phrase "in the name of" has been interpreted to mean the ownership must be of the member though it may stand Benami in the name of the wife or a child.
(8) It was submitted by the learned Counsel for the Society that interpretation placed by this Court is too narrow an interpretation and is not in consonance with continuance of the underlying objective of the provision. It is difficult to appreciate his contention. The interpretation placed by this Court was so placed in the year 1987 and has held the field till now. If the rule framing authority be of the opinion that the language of the rule as interpreted by this Court was not serving the object sought to be achieved, then it was for the authority to have amended the rule so as to bring it in conformity with the object sought to be achieved. We see no reason to take a view different from what has been taken on three occasions by this Court.
(9) As the view taken by the Registrar of Co-operative Societies and the Lt. Governor does not take note of the decision of this .Court in Navjeevan House Building Society Ltd.'s case (supra), their orders cannot be sustained. In the facts and circumstances of the case it is deemed appropriate to remand the matter to the Registrar of Co-operative Societies to re-examine and decide the same afresh in the light of the law laid down by this Court in the cases noted hereinabove.
(10) The petition is allowed. The impugned order of the Registrar of Cooperative Societies dated 16.8.91 and of the Lt. Governor dated 15.3.93 are hereby quashed and set aside and the case is sent back to the Registrar of Co-operative Societies for deciding it afresh in the light of the observations made herein-above. The petition stands disposed of accordingly. No order as to costs.