Delhi District Court
Sh. Sandeep Gupta vs Registrar on 19 October, 2019
IN THE COURT OF SH. PRANAV JOSHI: CIVIL JUDGE05
WEST DISTRICT: TIS HAZARI COURTS : DELHI
CS No. 12601/2016
Sh. Sandeep Gupta
S/o Sh. Raj Kumar Gupta,
R/o K259, Kohat Enclave,
Pitam Pura, Delhi - 110 034.
..........Plaintiff
Versus
1. Registrar
Cooperative Societies,
Parliament Street,
New Delhi 110 001.
2. Secretary,
Kohat Cooperative Housing Society Ltd.
Kohat Enclave, Pitam Pura,
Delhi - 110 034.
3. Delhi Development Authority,
Through its ViceChairman,
Vikas Sadan, I.N.A. Market,
New Delhi.
.....Defendants
SUIT FOR DECLARATION, MANDATORY INJUNCTION AND
PROHIBITORY INJUNCTION
Date of institution : 27.04.1988
Date of reserving of order : 14.10.2019
Date of decision : 19.10.2019
Final Order : Decreed.
CS No. 12601/2016 Sandeep Gupta Vs Registrar Cooperative Society. 1 of 12
JUDGMENT
BRIEF FACTS
1. Originally the present suit was filed by the plaintiff for permanent injunction. It was the case of the plaintiff that plaintiff has purchased suit property bearing no. K259, Kohat Enclave, Pitam Pura, Delhi from the erstwhile owner i. e. Sh. Shiv Raj Diwan in the year 1987. That Sh. Shiv Raj Diwan was the original allottee of the plot no. K259 as he was a member of defendant no. 2 society. That the plaintiff came to know that defendant no. 2 had issued a notice for cancellation of membership of Sh. Shiv Raj Diwan on the ground that he was not a resident of Delhi. That 01.04.1988, police officials came to the suit property and inform the plaintiff about the order of defendant no. 1 and advised him to approach defendant no. 1 and defendant no. 3. That defendant no. 1 has also intimated defendant no. 3 regarding the construction at the suit property. That the plaintiff is the bonafide purchaser and has invested lakhs of rupees on the construction of the suit property.
During the pendency of the suit, the plaintiff amended his suit on the information received from defendant no. 2 that the membership of Sh. Shiv Raj Diwan has not been cancelled. It is stated that defendant no. 2 had sent a letter dated 17.04.2009 with regard to agenda notice regarding the election of management committee of defendant no. 2 which shows that Sh. Shiv Raj Diwan had continued to be a member of defendant no. 2 society. That the plaintiff being a bonafide purchaser had applied for changing the membership of Sh. Shiv Raj Diwan in his name and defendant no. 2 has also issued a No Objection to the plaintiff on 05.05.2009.
CS No. 12601/2016 Sandeep Gupta Vs Registrar Cooperative Society. 2 of 12 On the basis of these pleadings, the plaintiff has sought the following reliefs:
(a) A decree of declaration declaring the membership of Sh. Shiv Raj Diwan was never validly cancelled and he continues to be a member of defendant no. 2.
(b) Decree of mandatory injunction against defendant no. 3 to convert lease hold plot to free hold in the name of the plaintiff on the basis of application already filed by the plaintiff against the necessary charges.
(c) Decree of permanent injunction directing the defendants not to interfere in the peaceful possession of the plaintiff in the suit property plot No. K259, Kohat Enclave, Pitam Pur, Delhi 110 034.
(d) Any other relief.
2. In its WS, it is stated on behalf of the defendant no. 1 that Sh. Shiv Raj Diwan was a member of defendant no. 2 but since, he was not a resident of Delhi and had become a member of the defendant no. 2 society in violation of bye laws, the defendant no. 2 society had ceased the membership of Sh. Shiv Raj Diwan. Therefore, the plaintiff is not entitled to any relief as he is claiming through Sh. Shiv Raj Diwan.
3. Defendant no. 2 society has stated in its WS that the membership of Sh. Shiv Raj Diwan has already been ceased by defendant no. 1 as well as the defendant no. 2 on the ground that at the time of the enrollment as a member of defendant no. 2 society, he was not resident of Delhi. The plaintiff has no right or title in the suit property as he has claimed to be a purchaser of the suit property from Sh. Shiv Raj Diwan whose membership has already been terminated.
4. Defendant no. 3 has stated in the WS that on the report of CS No. 12601/2016 Sandeep Gupta Vs Registrar Cooperative Society. 3 of 12 defendant no. 2, the sub lease has already been terminated on 24.07.1988 and thus, the plaintiff has no right to reenter in the premises.
5. It is pertinent to mention that during the pendency of the suit, the plaintiff has obtained the information from the records of the defendant no. 1 and 2 that the membership of Sh. Shiv Raj Diwan was never cancelled and he has in fact obtained NOC from defendant no. 2 on 05.05.2009. The copy of the information obtained by the plaintiff under RTI dated 20.05.2010 has been placed on record as per which Sh. Shiv Raj Diwan continued to be a member of defendant no. 2 society. On the basis of NOC obtained by the plaintiff, the plaintiff has applied for conversion of the plot in question from lease hold to free hold. However, defendant no. 3 has filed a status report on 12.04.2013 stating that the application for conversion filed by the plaintiff has been declined on the ground that the membership of Sh. Shiv Raj Diwan has not been restored by defendant no. 1 and the sublease in favour of Sh. Shiv Raj Diwan had already been cancelled and had not been restored.
6. Accordingly, Ld. Predecessor has directed the defendant no. 2 to file status report for the steps taken by defendant no. 2 before defendant no. 1 for issuance of a certificate to the effect that Sh. Shiv Raj Diwan is still the member of defendant no. 2 society. Ld. Predecessor vide order dated 30.12.2013 observed that the defendant no. 2 society had already requested defendant no. 1 to restore the membership of Sh. Shiv Raj Diwan vide letter dated 06.08.2010. Accordingly, defendant no. 1 was directed to file status report in regard to steps taken by defendant no. 1 for restoration of membership of Sh. Shiv Raj Diwan.
CS No. 12601/2016 Sandeep Gupta Vs Registrar Cooperative Society. 4 of 12 However, status report was not filed by defendant no. 1. Vide order dated 30.11.2017, Ld. Predecessor of this court once again directed defendant no. 1 to file status report regarding steps taken by defendant no. 1 for restoration of membership of Sh. Shiv Raj Diwan. Defendant no. 1 in compliance of order dated 30.11.2017 has filed status report wherein, it is stated that the defendant no. 1 had not taken any action for debarring the allottee from the membership of society on the ground of nonresidence in Delhi and that as per the records of defendant no. 1, defendant no. 1 have not taken any steps before defendant no. 3 for cancellation of sublease of the plot no.
259. It was also stated that defendant no. 3 has done the cancellation of the sublease on the request of defendant no. 2 society.
7. Accordingly, on the status report of defendant no. 1, Ld. Predecessor vide order dated 06.12.2018 directed defendant no. 3 to file a status report showing the ground on which the sublease in favour of Sh. Shiv Raj Diwan is cancelled. In its status report, it is stated that the claim of defendant no. 1 and defendant no. 2 with regard to similarity of other 11 determined cases is not correct as the subleases were not determined in other cases pointed out by defendant no. 2 and the plaintiff. Nothing substantial has been stated on behalf of defendant no. 3 with respect to the grounds on which it has determined the lease of the plot in question and the steps taken by defendant no. 3 for restoration of the lease and conversion of the plot from lease hold to free hold.
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8. It is pertinent to mention that Ld. Predecessor vide order dated 01.05.2013, has observed that since there is a clear admission on the part of defendant no. 2 that Sh. Shiv Raj Diwan has continued to be a member of defendant no. 2 society, relief of declaration sought by the plaintiff stood satisfied. Thus, the suit of the plaintiff is to be decided for the other reliefs claimed by the plaintiff.
9. Issues in the present case have already been framed but vide order dated 03.09.2019, this court was prima facie of the opinion that the present suit can be decided on the basis of admitted facts and the material which has come on record and accordingly, matter was listed for arguments.
10. Written submissions have been filed on behalf of the plaintiff and defendant no. 3. Plaintiff submits that even though, it has come on record that the membership of Sh. Shiv Raj Diwan was never cancelled, the defendant no. 3 has not taken any steps to restore the sublease in favour of Sh. Shiv Raj Diwan. That there were total 11 cases of similar nature and out of the said 11 cases, leases have already been restored in 10 cases and only case of the plaintiff is remaining. That DDA had issued a public notice calling upon all the land owners of plots of DDA for getting their sublease or determined lease restored by applying in the camps organized by Nagrik Suvidha Kendra, DDA at Vikas Sadan, INA, New Delhi on 27.03.2019, 15.04.2019 and 24.04.2019. That the even the plaintiff has applied for the same but the lease in favour of Sh. Shiv Raj Diwan has not been restored till date. Ld. Counsel for plaintiff has relied upon the CS No. 12601/2016 Sandeep Gupta Vs Registrar Cooperative Society. 6 of 12 following case laws in support of his arguments:
(i) Vijaya Myne Vs. Satya Bhushan Kaura (2007 142 DLT 484),
(ii) Baljeet Kaur Kalra Vs. Surjeet Singh & Ors.
(MANU/DE/1480/2016)
(iii) Vinay Kumar Aggarwal Vs. Radha Rani Aggarwal (MANU/DE/0092/2018).
11. On the other hand, it is the argument of defendant no. 3 that defendant no. 3 had received a complaint from defendant no. 2 vide letter dated 14.03.1988 about the cessation of membership of Sh. Shiv Raj Diwan. That vide letter dated 03.05.1988, show cause notice was issued to the allottee i. e. Sh. Shiv Raj Diwan for violation of terms of sublease. That after getting no response from the said allottee, sub lease was determined vide order dated 04.08.1998. That the action taken by the defendant no. 3 was legal and was in conformity with the legal procedure. However, it is also stated that defendant no. 3 is trying in all possible ways for restoration of the sublease of the plot in question. That the plaintiff has no relation with the defendant no. 3 as he is not the allottee of the lease of the plot in question.
12. I have carefully perused the record.
13. In nutshell, the sequence of events that has happened are that the plot no. K259, Kohat Enclave was alloted to Sh. Shiv Raj Diwan in 1975. The said plot was purchased by the plaintiff in the year 1987. It appears that in the year 1988, defendant no. 2 has informed defendant CS No. 12601/2016 Sandeep Gupta Vs Registrar Cooperative Society. 7 of 12 no. 3 that the membership of Sh. Shiv Raj Diwan had been terminated as he was not a resident of Delhi. Acting on the information, defendant no. 3 had terminated the sublease in favour of Sh. Shiv Raj Diwan on 04.08.1988. Perusal of the record shows that in the year 1994, defendant no. 1 has taken the management and control of defendant no. 2 society. When the management and control of defendant no. 2 society was restored and new management committee took over the affairs of defendant no. 2 society, it has issued an agenda notice dated 17.04.2009 to Sh. Shiv Raj Diwan which was received by the plaintiff. The plaintiff after obtaining the information from RTI, came to know that the membership of Sh. Shiv Raj Diwan was never cancelled. Even no objection certificate was given by defendant no. 2 society to the plaintiff on 05.05.2019 for the purpose of converting the plot from lease hold to free hold.
14. After obtaining the said information, plaintiff has amended the suit. It has also come on record that defendant no. 2 has intimated defendant no. 1 that the decision taken by the then President of defendant no. 2 of filing complaints against the members of defendant no. 2 on the ground of nonresidence was improper as the said decision was taken without the concurrence of executive committee and without issuance of any show cause notice to the members. The defendant no. 2 has also applied to defendant no. 1 for restoration of membership of the members. In this regard, letters dated 10.03.2010, 06.08.2010 and 17.04.2013 are significant. It is also relevant to note that in its status report, the defendant no. 1 has acknowledged about the said communication by the defendant no. 2 to defendant no. 1. As CS No. 12601/2016 Sandeep Gupta Vs Registrar Cooperative Society. 8 of 12 per the status report filed by defendant no. 1, there are no records with defendant no. 1 prior to the letter dated 02.11.1987 or thereafter, about the defendant no. 1 debarring any of the allottees from membership on the ground of nonresidence in Delhi. It is stated that no action was taken by defendant no. 1 to cancel the membership of Sh. Shiv Raj Diwan and the cancellation of the lease done by defendant no. 3 was only on the complaint filed by defendant no. 2 with defendant no. 3.
15. Thus, it is clear that defendant no. 1 has not taken any action for cancellation of membership of Sh. Shiv Raj Diwan. It appears that defendant no. 3 has acted only on the complaint filed by defendant no. 2 with defendant no. 3. It is the stand of defendant no. 3 that since it has not received any order from defendant no. 1 about the restoration of the membership of Sh. Shiv Raj Diwan, the sublease of the plot in question has not been restored.
16. It appears that the defendant no. 3 has cancelled the sublease of Sh. Shiv Raj Diwan presuming that his membership was cancelled by defendant no. 1 by only considering the complaint which was sent by defendant no. 2 to defendant no. 3. However, as per the material available on record, it is clear that defendant no. 1 never cancelled the membership of Sh. Shiv Raj Diwan and Sh. Shiv Raj Diwan has continued to be member of defendant no. 2 society. Even as per the record of defendant no. 2, the ownership of Sh. Shiv Raj Diwan is subsisting. Thus, the action of defendant no. 3 terminating the lease in favour of Sh. Shiv Raj Diwan is liable to be set aside.
CS No. 12601/2016 Sandeep Gupta Vs Registrar Cooperative Society. 9 of 12
17. What is surprising is that when it has come to the notice of the defendant no. 3 that membership of Sh. Shiv Raj Diwan is still subsisting and was not cancelled, the defendant no. 3 should have taken a corrective measure and should have restored the lease of Sh. Shiv Raj Diwan in respect of plot in question. This court has even asked for status report in respect of the action taken by the DDA for restoration of the lease of the plot in question but, nothing was done by the defendant no. 3. In the status report filed by defendant no. 3 dated 20.08.2019, there is no mention of any progress on behalf of defendant no. 3 for restoration of the lease of the plot in question. Defendant no. 3 is a public authority responsible for providing housing in Delhi. It is an agency of the state, such lethargy and high handedness on the part of defendant no. 3 is unfortunate. The plaintiff who is bonafide purchaser has suffered since 1988 and till date the lease of the plot has not been destroyed, despite the fact that the membership of Sh. Shiv Raj Diwan was never cancelled.
18. The court is satisfied that it is fit case where the court can exercise the powers under Order 12 Rule 6 CPC and pass a judgment on the basis of admitted facts and material available on record. The ld. Counsel for the plaintiff has rightly relied upon Baljeet Kaur Kalra (Supra) and Vinay Kumar Aggarwal (Supra) where in it was held that unnecessary trial just because issues are framed causes harassment to the parties. It is also held that once suit can be disposed off on the basis of admitted pleadings and other admissions, suit ought to be disposed of by not putting the parties to the burden of a trial. Trial is not compulsory in every suit. If from the documents CS No. 12601/2016 Sandeep Gupta Vs Registrar Cooperative Society. 10 of 12 and pleadings, it is clear that there is no need for a trial and that the case of a party stands admitted, the court can pronounce judgment. Accordingly, in the opinion of this court, the suit of the plaintiff is liable to be decreed.
19. It has come on record that defendant no. 3 has terminated the lease of the plot in question on 04.08.1988. However, the plaintiff has not asked for any specific relief qua the restoration of the said lease. Nevertheless, since the termination of the lease of the plot in question was done only on the basis that the membership of Sh. Shiv Raj Diwan was cancelled by defendant no. 1 and 2, the court deems fit that the plaintiff should not suffer any further as the suit pertains to the year 1988 and the lease of the plot in question should be restored.
20. In view of the above, the suit of the plaintiff is decreed in the following terms: a. The relief asked for by the plaintiff for declaration with respect to the membership of Sh. Shiv Raj Diwan in defendant no. 2 society has already been satisfied as observed by the Ld. Predecessor vide order dated 01.05.2013. Thus, relief (a) stands satisfied. To rest all the controversies, the court deems fit that the membership of Sh. Shiv Raj Diwan in defendant no. 2 society shall be transferred in the name of the plaintiff. Accordingly, defendant no. 2 is directed to transfer/substitute the membership of Sh. Shiv Raj Diwan in the name of the plaintiff.
b. Defendant no. 3/DDA is directed to restore the sublease of the plot CS No. 12601/2016 Sandeep Gupta Vs Registrar Cooperative Society. 11 of 12 no. K259, Kohat Enclave, Pitam Pura, Delhi 110 034 as expeditiously as possible.
c. Defendant no. 3/DDA is also directed to convert the lease of the plot no. K259, Kohat Enclave, Pitam Pura, Delhi 110 034 from lease hold to free hold in the name of the plaintiff against the necessary charges.
d. Defendants are directed not to interfere in the peaceful possession of the plaintiff in the plot no. K259, Kohat Enclave, Pitam Pura, Delhi 110 034.
Parties to bear their own cost. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Digitally
signed by
PRANAV
PRANAV JOSHI
JOSHI Date:
Announced in the open Court 2019.10.19
11:29:41
today i. e. on 19.10.2019. +0530
(Pranav Joshi)
Civil Judge05, West
Tis Hazari Courts, Delhi
19.10.2019
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