Punjab-Haryana High Court
Swaran Jyoti Ews Cooperative Group ... vs State Of Haryana & Ors on 24 February, 2016
Author: Arun Palli
Bench: Arun Palli
Civil Writ Petition No.26764 of 2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Writ Petition No.26764 of 2014
Date of Decision: February 24, 2016
Swaran Jyoti, EWS Cooperative Group Housing Society ....petitioner
Versus
State of Haryana and others .....respondents
CORAM: HON'BLE MR.JUSTICE S.J.VAZIFDAR, ACTING CHIEF JUSTICE
HON'BLE MR.JUSTICE ARUN PALLI
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.S.D.Bansal, Advocate
for the petitioner
Mr.Lokesh Sinhal, Additional Advocate General,
Haryana
Mr.Deepak Manchanda, Advocate for HUDA
***
ARUN PALLI, J.
A writ in the nature of certiorari is prayed for, to quash the order dated 06.11.2013 (Annexure P19), rendered by respondent No.2, vide which Group Housing Plot No.76, Sector 56, Gurgaon, allotted to the petitioner-Society, had since been cancelled and the site has been ordered to be re-advertised for fresh allotment.
A brief narrative of the controversy that has led the parties to the current stage, would be imperative. Petitioner i.e. Swaran Jyoti, EWS Co-operative Group Housing Society Ltd., applied to Haryana Urban Development Authority (HUDA), Panchkula, Haryana (respondent No.3), for allotment of land under the EWS (Economically Weaker Section) category. On a consideration of the claim of the petitioner, respondent No.3 decided in principal to allot 4000 sq.mtrs. of land to the petitioner in Sector 54, 55 and 56 at Gurgaon. Accordingly, the Letter of Intent dated NEENU VERMA 2016.03.01 14:55 I attest to the accuracy and integrity of this document Civil Writ Petition No.26764 of 2014 2 26.03.1999 (Annexure P4) was issued and the petitioner-Society was required to complete the entire documentation and meet certain pecuniary demands. On compliance, a formal agreement dated 19.05.1999 (Annexure P5) was executed between the petitioner- Society and respondent No.3. Accordingly, a formal letter of allotment dated 16.02.2000 (Annexure P6), whereby plot No.76, Sector 56, Gurgaon, admeasuring 4852 sq.mts., was allotted to the petitioner-Society, on freehold basis, under Group Housing Scheme, 1998 (for short 'the 1998 Scheme') was issued. The actual physical possession of the plot was handed over to the petitioner-Society on 12.12.2000. Construction at site commenced in the year 2001 and was completed in the year 2004. Petitioner-Society applied for Occupation Certificate on 03.01.2005, which was granted on 23.03.2007 (Annexure P9). That being so, a formal Conveyance Deed was also executed by respondent No.3, through its Estate Officer, in favour of the petitioner-Society on 06.03.2007 (Annexure P8). A comprehensive policy dated 02.01.2009 (Annexure P10) was framed by respondent No.3, which provided for altering the number and sizes of dwelling units, transfer of membership, increase in FAR etc. A news item appeared in the newspaper "Hindustan" on 18.01.2012 and reported regarding the cracks that had appeared in the balconies of many of the flats in the Society. Resultantly, the Administrator, HUDA, Gurgaon, vide communication dated 25.01.2012 to the Estate Officer-II, HUDA Gurgaon, sought a Structure Report, from the Management of the petitioner-Society for NEENU VERMA 2016.03.01 14:55 I attest to the accuracy and integrity of this document Civil Writ Petition No.26764 of 2014 3 necessary action. Resultantly, the petitioner-Society obtained a Report dated 27.04.2012 (Annexure P12) from ARCEE Associates, who opined that the building in question was unsafe and recommended vacation of the premises with immediate effect. A general body meeting of the petitioner-Society was convened and all the members reached a consensus to demolish the old building and raise a new structure of current design and parameters. Being conscious of the fact that original 44 members of the Society would not be able to bear the burden of the current cost of construction, it was also resolved to enrol additional members and request HUDA- respondent No.3 to permit the petitioner-Society to build more flats. Accordingly, vide representation dated 15.05.2012, addressed to the Chief Administrator, HUDA, petitioner-Society sought permission; (a) to increase in the number of its original members from 44 to 126, (b) to increase the size of dwelling units from 35 sq. mtrs. to 67.38 sq. mtrs. and (c) to increase FAR from 150% to 175%, in accordance with the settled norms and precedents.
The Chief Administrator, HUDA (Town Planning Wing), Panchkula, vide letter dated 05.11.2012 (Annexure P14), granted "in principle approval", to the petitioner-Society, subject to the conditions that the society (i) paying required charges of Rs.281.30 lacs for the proposed changes (ii) submitting revised form 'L' of 126 members duly attested and verified by ARCS, Gurgaon (iii) as per the eligibility condition prescribed under Group Housing Scheme, 1998, inducting only EWS members, whose total income does not exceed NEENU VERMA ` 2500/- per month and (iv) submitting the consent of all the 2016.03.01 14:55 I attest to the accuracy and integrity of this document Civil Writ Petition No.26764 of 2014 4 members to the decision of the Management to demolish the existing structure and constructing a new building at site. Accordingly, a sum of ` 281.30 lacs was deposited by the petitioner-Society. Likewise, Assistant Registrar, Co-operative Societies, Gurgaon, approved the 'L' form of 44 replaced and 82 newly inducted EWS members on 30.11.2012. Resultantly, the final approval was accorded by Chief Administrator, HUDA (Town Planning Wing), Panchkula, vide a communication dated 04.02.2013 (Annexure P17). And, vide letter dated 05.09.2013 (Annexure P18), Estate Office-II, HUDA, Gurgaon, also wrote to the Administrator, HUDA, Gurgaon, to fix a meeting for approving the building plan submitted by the petitioner-Society.
It was, at this stage, pursuant to a purported verbal complaint, the Principal Secretary, Department of Town and Country Planning (respondent No.2), in exercise of power under Section 30 of the HUDA Act, 1977 (for short 'the Act'), requisitioned the necessary records from the Estate Office-II, Gurgaon and Administrator, Gurgaon, vide letter dated 06.11.2013 (Annexure P19), to ascertain whether the approval accorded by the Chief Administrator suffered from any illegality or impropriety. He further ordered that no fresh building plans be approved for construction of 126 dwelling units. In this regard, it appears that in response to a show cause notice issued by the authorities, the petitioner-Society submitted its response, which along with the comments of Estate Office-II, HUDA, Gurgaon, were forwarded by the Chief Administrator, vide a communication dated 16.05.2014 (Annexure P21), to respondent NEENU VERMA No.2, and the same reads thus:
2016.03.01 14:55I attest to the accuracy and integrity of this document Civil Writ Petition No.26764 of 2014 5
Sr. Observations Reply of Society dated Comments No. as per Show 07.03.2014 & 02.05.2014 Cause Notice dated
1. The society Regarding point no. 1, it Comments of EO-II, HUDA, has replaced is submitted that the Gurgaon:-
all the original society has replaced all The permission for increasing 44 members the original 44 members he members from 44 to 126, as per HUDA policy. The replacing 44 original members authority has granted the increasing the size of dwelling approval vide the office units from 35 sqm. to 67.38 sq. memo no.
mtr. and increase in FAR from CTP/GGN/SB/GHS/1595 150% to 175% was granted by dated 04.02.2013. We had Chief Administrator, HUDA, already deposited Rs. Panchkula vide letter no. 4,40,000/- for the transfer CTP/GGN/SB/GHS/1595 dated fee demanded by the 04.02.2013. The requisite fee authority. was deposited and after receipt Regarding increase of requisite fee and documents in the members of the intimation was sent to Head society, it is stated that Office and approval was earlier the FAR allowed received from Head Office vide for Group Housing letter as mentioned above.
projects was 150.
Comments of CTP office:
However, keeping in view
the shortage of space and As per policy dated 02.01.2009
accommodation to the society can replace all the 44
general public in the members. Accordingly,
urban areas, the State permission of the same was
Government in the Town granted and required fee for
and Country Planning the same amounting to Rs. 4.40
Department and HUDA lacs has been deposited by the
has allowed increase in society.
FAR from 150 to 175 for Further, the Estate Officer-
Group Housing Projects II, HUDA, Gurgaon has also
with the result that more intimated that the society has
and more families could submitted the revised building
be provided residential plans on 29.07.2013 which has
accommodation within not been approved, so far as
the affordable prices. per orders of Worthy PSTCP,
With the intention to Haryana. The record of revised
avail the benefit of building plans was sent to Chief
increase FAR, some more Administrator, HUDA,
members were enrolled in Panchkula vide letter no. 10856
our society. Thus, the dated 22.11.2013. Regarding increase in FAR allowed construction work of above said by CA HUDA from 150 to Group Housing Society, the 175 is in accordance with same.
the norms prescribed by Government.
NEENU VERMA 2016.03.01 14:55 I attest to the accuracy and integrity of this document Civil Writ Petition No.26764 of 2014 6
2. The society It is also clarified that all Comments of EO-II, HUDA, has added the newly enrolled 82 Gurgaon:-
substantially members and the 44 The facts mentioned in this para are more original members belong correct, which are as per record. As per members i.e. to economically weaker revised L form dated 30.11.2012, there is change in members, however, it is 82 members sections of the society. mentioned here that required fee for without Further, as per the earlier increase in members as well as change in following any FAR, the covered area of members had been paid by the society as approved by the Head Office as mentioned transparent the flats proposed to be in para 1 above. The society has applied criteria with allowed was 35 sq. mts. for occupation certificate on 03.01.2005 new 126 But with the increase in vide SWS No. 32931 dated 03.01.2005 and accordingly, the case was compounded and members. The FAR, the covered area of compounding fee was intimated to the occupation the dwelling units could society vide letter no. 3561 dated certificate to be increased to 67.38 sq. 12.05.2006. The conveyance deed was executed on 06.03.2007 after payment of the group mtrs. Accordingly, the full cost of plot.
housing increase in the number of Further the Estate Officer-II HUDA, society was dwelling units and Gurgaon has also intimated that the issued on increase in the covered society has submitted the revised building plans on 29.07.2013 which has not been 23.03.2007, area allowed by CA approved, so far as per orders of Worthy then how the HUDA vide order dated PSTCP, Haryana. The record of revised structures 31.10.2012 is perfectly building plans was sent to Chief Administrator, HUDA, Panchkula vide within a legal and as per policy letter no. 10856 dated 22.11.2013. period of two parameters dated Regarding construction work of above years can be 02.01.2009. said Group Housing Society, the same has already been got stopped as per orders of held to be un- Regarding the Worthy PSTCP Haryana dated inhabitable on structure becoming un- 06.11.2013. The society has also given the the ground of consent that already existing building will inhabitable, it is be demolished.
poor submitted that the society Comments of CTP office: -
construction. had allotted the work of
At the time of construction to a private
As far as matter regarding enrolling 82
new members is concerned, it is intimated
grant of contractor. Though the that in case of EWS societies, maximum
occupation structure work was in permissible density upto 600 PPA was
certificates, allowed under Group Housing Schemes
fine condition and the floated by HUDA in the year 1998 and
the structural structural stability 2001. In view of the provisions, earlier stability of the certificate was also permissions were granted for maximum building is permissible density upto 600 PPA to Lord obtained from the Budha EWS Society, Faridabad, Dhruv certified by competent authority but EWS Society, Faridabad and Sunehra the Structural the quality of other Apna Ghar EWS Society, Gurgaon. In Engineer, view of the above the request of Swarn works done by the Jyoti EWS Society, Gurgaon for increase which is also contractor was very poor in membership was considered and society the with the result that cracks was allowed to increase its membership responsibility from 44 to 126 by adding 82 new stated appearing in the members. The resultant density is 519 of owner walls and the habitants of PPA. The society has deposited requisite society. the dwelling units became fee of Rs. 8.2 lacs for increase in membership from 44 to 126.
afraid and feared that the Estate Officer-II HUDA, Gurgaon has building may not not commented upon the poor quality of collapse. Keeping in view construction and structural stability the above said fact and certificate submitted by the society at the time of grant of Occupation Certificate.
the increase in FAR As regards quality of poor construction, allowed by the State it is submitted that the society had Government, the revised submitted a copy of report of ARCEE building plans of the Associates, K-3/69, DLF Qutab Enclave Phase-II, Gurgaon vide which it is society have been certified that the construction is of poor submitted for approval quality. It was recommended that the with HUDA. There is no premises may be vacated with immediate effect. The society also submitted intention to derive any paragraphs of the existing structures, undue gains in getting the which indicates poor quality of revised building plans construction.
approved from HUDA.
NEENU VERMA2016.03.01 14:55 I attest to the accuracy and integrity of this document Civil Writ Petition No.26764 of 2014 7 3 A few of the The allegation that the Comments of EO-II, HUDA, recently Gurgaon: - As per revised L recently inducted inducted form dated 30.11.2012 duly members of the society members of verified by the Sub Inspector, the society are the domiciles outside Coop-Society, Gurgaon & are the Counter signed by the the State of Haryana or domiciles Assistant Registrar, Coop-
of Chandigarh is also
outside the Society Gurgaon all the
State of baseless and vehemently member, filing to or working in
Haryana or Haryana State including
denied. It is reiterated
Chandigarh, Chandigarh.
that all the members of
credibility of Comments of CTP Officials: -
their being the society including the The above report of EO-II,
belonging to HUDA, Gurgaon in reply to
newly inducted members
the EWS para-3 is confusing and does
are domiciles of Haryana.
category not make any sense.
having total The list of members As per the latest form 'L'
family income submitted by the society, the
alongwith their
below Rs. residential and working /
addresses is enclosed
2500 per correspondence addresses of
month seems for your kind all the members have been
to be given. In the residential
information. They belong
doubtful. addresses, some of the
to the weaker sections of
members are residing in Delhi.
the society having less However, in the working/
correspondence address all of
than income of Rs. 2500/-
them are Haryana. The
per month. It is also
revised form 'L' has been
wrong that the said verified and signed by
Assistant Registrar,
members have become
Cooperative Society, Gurgaon.
members of society for
speculative purpose. All
of them intend to live in
the society.
And, accordingly, the Chief Administrator, HUDA, proposed to respondent No.2, that as the allegations made vide an NEENU VERMA 2016.03.01 14:55 I attest to the accuracy and integrity of this document Civil Writ Petition No.26764 of 2014 8 alleged oral complaint, were wholly false and seemed to have been made out of frustration, the proceedings be dropped. However, as indicated in the beginning, vide order dated 10.10.2014, respondent No.2 still cancelled the allotment of site allotted to the petitioner- Society. The conclusion that has been arrived at by respondent No.2 reads thus:
It seems that the allotment of this society was got done just with the ulterior motive of speculation so as to get the plot at the concessional rates, vis-a-vis, rates of other societies as 40% subsidy was given to the society at the time of allotment. The Government took the initiative of allotting the land to EWS Co-operative Group Housing Societies at the concessional rates, with the purpose of providing shelter to the Economically Weaker Sections of the Society. This very purpose stands defeated in the present case as is clear from the discussion above because none of the members could prove his status belonging to the Economically Weaker Section. It is strange that even the Registrar, Co-operative Societies, did not investigate about the actual facts while authenticating the economic status of the members of the society and acted in a very casual manner.
In view of the discussion above, it is clear as per the record submitted by the society itself that the members of the society are not belonging to Economically Weaker Section. The society violated the terms and conditions of NEENU VERMA 2016.03.01 14:55 I attest to the accuracy and integrity of this document Civil Writ Petition No.26764 of 2014 9 brochure as well as the allotment letter for which it does not deserve any leniency. The schemes of the Government made especially for the upliftment of weaker section of the society cannot be allowed to be misused like this. Therefore, the allotment of Group Housing Plot No. 76, Sector 56, Gurgaon, is hereby cancelled. The Estate Officer, Gurgaon is hereby directed to take back the possession of the plot in question within 30 days from the date of this order after making refund as per policy. It is further directed that the plot may be advertised again as per procedure within 3 months from today for making fresh allotment to a Society comprising of Members belonging to Economically Weaker Sections of the Society as per criteria applicable today.
Sd/-
(T.C. Gupta, IAS)
Principal Secretary, Govt.,
Haryana, Town & Country
Place: Chandigarh Planning & Urban Estates
Dated:10.10.2014 Departments
That is how the petitioner-Society is before this Court.
We have heard learned counsel for the parties and perused the paper book.
Learned counsel for the petitioner-Society submits that the approval was granted by the Chief Administrator, HUDA, vide order dated 31.10.2012, for increasing the number of members from 44 to 126, FAR from 150% to 175%, in terms of the settled norms and the policy dated 02.01.2009 (Annexure P10), and similar NEENU VERMA 2016.03.01 14:55 I attest to the accuracy and integrity of this document Civil Writ Petition No.26764 of 2014 10 requests of other EWS societies i.e. Sunehra Apna Ghar Co-
operative Group Housing Society Limited was also acceded to. He further contends that the observation that forms basis of the order being assailed, that none of the 126 members of the petitioner- Society belonged to economically weaker section, was wholly erroneous, for the newly inducted 82 members indeed belonged to the EWS category. Further, he contends that as even the Bye Law 3(b) of the Model Bye Laws of Co-operative Group Housing Society, that spells the eligibility for being a member of EWS Society has since been deleted vide an amendment in the Bye Laws, there was no embargo for any individual to become a member of the petitioner- Society even though he did not belong to an economically weaker section. But of course, he was required to fulfil the post amendment eligibility conditions. And, it is submitted that respondent No.2 rendered the order dated 10.10.2014 (Annexure P1), purely on account of ulterior motives and due to inter departmental politics.
Per contra, Mr.Lokesh Sinhal, learned Additional Advocate General, Haryana, submits that originally the petitioner- Society was comprised of 44 members who belonged to economically weaker section, and, which is why, the site in question was allotted under the 1998 Scheme, in the EWS category. Once that was so, he contends, no right, title or interest could be transferred in favour of those who did not belong to the economically weaker section. For, the very purpose of allotment stood frustrated, thus, the cancellation of allotment of site was completely justified. NEENU VERMA 2016.03.01 14:55 I attest to the accuracy and integrity of this document Civil Writ Petition No.26764 of 2014 11
Ex facie, the only reason that has been assigned by respondent No.2 in support of its order, is that none of the 126 members i.e. 82, who were newly enrolled and 44 who replaced the original 44 members, belonged to economically weaker section. And, thus, the very purpose of allotment that was made at concessional rate by affording 40% subsidies, stood defeated.
On a due and thoughtful consideration of the matter in issue, the questions that come to fore for consideration are:
1) Even if it is assumed that no right, title or interest could be transferred in favour of those who did not belong to the economically weaker section, could the allotment of site to the petitioner-Society itself be cancelled.
2) Whether, post allotment and execution of the conveyance deed dated 06.03.2007, executed in favour of the petitioner-Society, its member could not alienate their interest in favour of those who did not belong to EWS.
So, adverting to the first question, it needs to be noticed that the petitioner-Society could enrol new members, for Bye Law 66 of the Model Bye Laws postulates that the society shall consist of at least 40 members. Meaning thereby, only the minimum number of members that a society must consist of, is prescribed. Further, the petitioner-Society, in its response (Annexure P21), to a show cause notice asserted in no uncertain terms that all the newly NEENU VERMA 2016.03.01 14:55 I attest to the accuracy and integrity of this document Civil Writ Petition No.26764 of 2014 12 enrolled 82 members and 44 original members belonged to economically weaker section. No cogent or credible material was referred to by respondent No.2 either to conclusively conclude that the 82 newly enrolled members indeed did not belong to the EWS category. So much so, a specific assertion set out in Para 10 (xx) of the writ petition; that Assistant Registrar, Co-operative Societies, Gurgaon, approved the 'L' form of 44 replaced and 82 newly inducted EWS members, has not been rebutted either. The Registrar, Cooperative Societies, Haryana, is arrayed as respondent No.5 and has even filed the written statement but has not chosen to controvert this position either. Even during the course of hearing, learned counsel for the petitioner-Society emphatically asserted that only those members, who replaced the original 44 members of the petitioner-Society, did not belong to economically weaker section, whereas, the newly enrolled 82 members indeed belonged to the said category. Significantly, the submission was not controverted by the learned State counsel. Once that is so, and even if it is assumed that the original 44 members could not transfer their interest to those who did not belong to the economically weaker section, that at worst could entail that those 44 members were not entitled or eligible to be enrolled as member of the EWS society in terms of Bye Law 3(b) of the Bye Laws and consequently would not acquire any title. But under no conceivable situation, it could be a cause to cancel the allotment, itself to the petitioner-Society and that too, to the detriment of the rest 82 members, who indeed belonged to an economically NEENU VERMA 2016.03.01 14:55 I attest to the accuracy and integrity of this document Civil Writ Petition No.26764 of 2014 13 weaker section.
The matter in issue could be examined from yet another perspective. The order that has been assailed, was rendered by respondent No.2 in purported exercise of power under Section 30 of the Act, which reads thus:
30. Control by State Government (2) The State Government may, at any time either on its own motion or an application made to it in its behalf, call for the records of any case disposed of, or order passed by the Authority for the purpose of satisfying itself as to the legality or propriety or correctness of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it thinks fit:
Provided that the State Government shall not pass an order adversely affecting any person without affording such person an opportunity of being heard.
Apparently, respondent No.2 took cognizance of the approval dated 04.02.2013 (Annexure P17), accorded by Chief Administrator, HUDA. Thus, even if respondent No.2 was of the view that no such approval could be granted it, at best could modify or set NEENU VERMA 2016.03.01 14:55 I attest to the accuracy and integrity of this document Civil Writ Petition No.26764 of 2014 14 aside the said order, and/or pass any appropriate order as regards the 44 members who did not belong to the economically weaker section. But in no situation could respondent No.2 cancel the allotment itself to the petitioner-Society. Moreover, such an order would adversely affect every eligible member for no fault of theirs. And is thus unsustainable. In addition thereto, the members who are adversely affected by such an order have not even been heard. The order is therefore contrary to the proviso to Section 30. Let us assume that the respondents can cancel the allotment of land on account of any of the members of the society being ineligible to own a flat. Even then it would be inequitable to do so without giving the society an opportunity to cancel the membership of such a member. A view to the contrary would be inequitable and unjust to all the eligible members. In such an exercise, it would be necessary to give not merely the society but even the members concerned, an opportunity of being heard.
That being so, we may now advert to the second question that arises for our consideration.
Our attention was drawn by learned counsel for the petitioner to the amendment (Annexure P7) that was carried out vis- a-vis Model Bye Law No.3 (b) of the Model Bye Laws, which before and post amendment reads thus:
NEENU VERMA 2016.03.01 14:55 I attest to the accuracy and integrity of this document Civil Writ Petition No.26764 of 2014 15 A person shall be eligible for admission A person shall be eligible for admission as a member of the society if he: as a member of the society if he/she is
(i) Belongs to or is a resident of or is a Citizen of India and has been an working in Haryana State including ordinary resident of India during the Chandigarh for the last one year at time last two years preceding the date of of becoming member of the Society and submission of his application for qualified for any of the following enrolment as a member of the Society.
categories of Societies. Provided that the societies which apply for allotment of land under any particular scheme floated by the Govt.
of Haryana. HUDA or any other agency of the Haryana Govt. shall conform to the terms and conditions laid down in General (a) Societies consisting of that particular scheme.
members who belong to or are residents of Haryana or are working in Haryana State including Chandigarh for the last one year. Deleted.
(b) EWS : Societies consisting of such members whose total family income does not exceed Rs. 2500/- per month.
The member should belong to Haryana or resident of or working in Haryana State or Chandigarh for the last one year.
(c) Haryana Govt. employees: Societies consisting of employees of Haryana Govt., its Board and Corporation, retired employees of Haryana Govt., Haryana Universities, employees of Deleted. Govt., sponsored Cooperative organisations such as Hafed Sugarfed, Cooperative Apex Bank and Authorities such as Command Area Development Authority
(d) Central Govt. employees Societies consisting of employees of Central Government, its corporation and Deleted.
undertaking, University employees, Defence Personnel, Bank employees.
NEENU VERMA 2016.03.01 14:55 I attest to the accuracy and integrity of this document NEENU VERMA 2016.03.01 14:55 I attest to the accuracy and integrity of this document Civil Writ Petition No.26764 of 2014 16
In reference to the afore-indicated position, learned counsel for the petitioner submits that before amendment, for an individual to be eligible for admission as member of the EWS Society, his total family income had to be less than ` 2500/- per month. Whereas, as a consequence of the amendment, the said condition was done away with, with effect from 24.10.2005. And thereafter, it was open to seek enrolment as member of any society, as envisaged under Bye Law 3, if he/she happened to be a citizen of India and has been an ordinary resident of India, during the last two years, preceding the date of submission of his application for enrolment as a member of the society. Therefore, he submits that even those who did not belong to the economically weaker section, could become members of the EWS society. Further, the approval in question was sought and accorded by the Chief Administrator, HUDA, in sync with the policy dated 02.01.2009 (Annexure P10).
On the contrary, learned State counsel has placed reliance upon the proviso to the amendment that contemplates that the societies that apply for allotment of land under any particular scheme floated by the Government of Haryana, HUDA or any other agency of the Haryana Government, shall conform to the terms and conditions laid down in that particular scheme.
Bye Law No.66 of the Model Bye Laws, reads thus:
66. The Society shall consist of at least 40 members and shall abide by the terms and conditions as are prescribed in the scheme under which the land is NEENU VERMA allotted to the society by the HUDA.2016.03.01 14:55 I attest to the accuracy and integrity of this document Civil Writ Petition No.26764 of 2014 17
Based on this bye law, he submits that the petitioner- Society has to abide by the terms and conditions as prescribed in the Scheme under which the land was allotted to the society by HUDA. And, in further reference to Clause 2(ii) of the 1998 Scheme, which envisage that only those EWS Societies could be eligible to apply which comprised of such members, whose total income did not exceed ` 2500/- per month, he submits that the said condition would still be in force and those who did not belong to the Economically Weaker Section could never be enrolled.
We are reminded to point out at this juncture that this Court on 08.01.2015 had specifically sought the stand of the State on this issue and the order reads as thus:
Prima facie, we do not find any merit in the argument raised by the petitioner that the plots/dwelling units allotted to the persons belonging to Economically Weaker Section can be sold to the persons irrespective of their financial status.
To seek the stand of the State, we deem it
appropriate to issue notice of motion for
22.01.2015.
But significantly, no written statement has been filed on behalf of respondents No.1 and 2 to date, to support the order being assailed. Therefore, in the situation, we would rather leave this question open to be examined in fresh or any other proceeding, if initiated by the respondents. There are only general observations regarding the eligibility of all the members. The eligibility of each NEENU VERMA must be tested if it is proposed to cancel the membership. Such 2016.03.01 14:55 I attest to the accuracy and integrity of this document Civil Writ Petition No.26764 of 2014 18 person must be afforded a hearing. If the respondents propose cancelling the membership of any member or propose calling upon the society to cancel such membership, they must afford the society and the member concerned an opportunity of being heard.
Accordingly, the order dated 06.11.2013 (Annexure P19) is set aside and the writ petition is disposed of in the above terms.
(S.J. VAZIFDAR) (ARUN PALLI)
ACTING CHIEF JUSTICE JUDGE
February 24, 2016
neenu
NEENU VERMA
2016.03.01 14:55
I attest to the accuracy and
integrity of this document