Indian Kanoon - Search engine for Indian Law

Delhi High Court - Orders

Chander Kaul And Ors vs Registrar Of Co-Operative Societies ... on 10 March, 2022

Author: Vipin Sanghi

Bench: Vipin Sanghi, Dinesh Kumar Sharma

                          $~7.
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      W.P.(C) 9505/2019
                                 CHANDER KAUL AND ORS.                 ..... Petitioners
                                             Through: Mr. Anuj Dhir, Advocate.

                                                     versus

                                 REGISTRAR OF CO-OPERATIVE
                                 SOCIETIES AND ANR.                                  ..... Respondents
                                                     Through:     Mr. Anupam Srivastava, ASC,
                                                                  GNCTD with Mr. Dhairya Gupta and
                                                                  Mr. Ujjwal Malhotra, Advocates for
                                                                  respondent No. 1.

                                 CORAM:
                                 HON'BLE MR. JUSTICE VIPIN SANGHI
                                 HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
                                         ORDER

% 10.03.2022

1. The petitioners have preferred the present writ petition to seek a direction to the respondents to regularise membership of the petitioners in the Mandakini Group Housing Society situated at plot No. 3C, Sector 2 Dwarka, New Delhi.

2. The brief background of the case is that in the said Cooperative Society, there were 7 vacancies upon resignation of 7 existing members. The said society has enrolled 7 new members, including the 3 petitioners. However, while doing so, the said Society did not make compliance of Rule 19 of the Delhi Cooperative Societies Rules, 2007. A public notice was not issued to invite applications by all interested persons.

3. It appears that the said Society and its office bearers picked up 7 persons interested in becoming members and enrolled them as members. Thereafter, the allotment of specific flats was made to the said 7 members by the said Society by holding a private draw of lots. The petitioners have been residing in their respective privately allotted flats and have been seeking regularisation of their membership by the Registrar of Cooperative Societies.

4. The submission of learned counsel for the petitioners is that the Hon'ble Lt. Governor has waived compliance of the Act and the Rules in respect of 26 societies vide order dated 17.10.2011 bearing No.F.47/86/RCS/Policy/2009/2009/PF/519. The said order reads as follows:

"No.F.47/86/RCS/Policy/2009/2009/PF/519 Date: 17.10.2011 ORDER No. F.47/86/RCS/Policy/2009/2009/PF In exercise of the powers conferred by section 127 of Delhi Cooperative Societies Act. 2003 (Delhi Act No.3, of 2004), the Lt. Governor of the National Capital Territory of Delhi is pleased to regularize the selfdraw conducted by the following 26 cooperative Housing Societies from the operation of sub section (1) of section 77 of the said Act by giving one-time exemption, namely:-

1. Air India CGHS Ltd. 2. Appu Enclave CGHS Ltd.

3. Baroda House NRI 4. Batukji CGHS Ltd.

CGHS Ltd.

5. Bharat Jagriti CHGS 6. Chitrakootdham CGHS Ltd. Ltd.

7. Crown CGHS Ltd. 8. Delhi Apartment CGHS Ltd.

9. IDC CGHS Ltd. (Subject to outcome of Special Leave Petition No. 4802-03/2011

10. Karuna Vihar CGHS Ltd.

11. Khattar CGHS Ltd. 12. Mahajan Shree CGHS Ltd.

13. Maharani Aventibai 14. Mahavir CGHS Ltd.

CGHS

15. Manisha CGHS Ltd. 16. Naval Technical Officers CGHS Ltd.

17. Pragti Sheel Bharva 18. S.B. Youth CGHS Ltd.

CGHS Ltd.

19. Sanchar Vihar CGHS 20. Sant Sunder Dassji Ltd. CGHS Ltd.

21. Sapna Ghar CGHS Ltd. 22. Saptapami CGHS Ltd.

23. Sarve Satyam CGHS Ltd. 24. Satyam CGHS Ltd.

25. Shree New Anamika 26. Shri Racha Krishna CGHS Ltd. CGHS Ltd.

(1) However, the members and other office bearers of the CBI investigated societies who have been charge sheeted by CBI shall not set the benefit of such regularization and their names shall not be sent to DDA till the criminal cases pending against them are finally decided as in the case of other CBI investigated societies.

(2) The allotment would be provisional in nature and indemnity bond on non-judicial stamp paper of Rs.100/- has to be submitted by members as well as President/Secretary of the society. Separate affidavit has to be filed by the members & Secretary of the society to the effect that they had no objection to the manner of conduct & outcome of the self draw. (3) The regularization of self draw shall be subject to payment of penalty by each member who have carried out self draw without the approval of RCS as follows:-

1. Owners of 02 bedrooms houses - Rs.15000/-

2. Owners of 03 bedrooms houses - Rs.20000/-

3. Owners of 04 bedrooms houses - Rs.25000/-

(4) One time exemption in r/o self draw society is restricted only up to the provision of section 77(1) of DCS Act - 2003."

5. Learned counsel for the petitioner submits that the regularisation W.P.(C) 9505/2019 Page 3 of 8 Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:16.03.2022 18:55:43 charges/ fees levied by the Lt. Governor, may be levied upon the petitioner as well. He submits that the petitioners leave it to this Court to determine the amount that the petitioners been called upon to deposit for the purposes of regularisation. He further submits that so far as the private draw of lots is concerned, there is no impediment in regularising the same since there is no inter se dispute between any of the members of the said Society with regard to the allotment of particular flats to any of the 7 freshly enrolled members, including the petitioners. The purpose of providing draw of lots through DDA is only to maintain transparency and to ensure that there is no grievance raised by any member with regard to manipulation or favouritism in the matter of allotment of specific flats.

6. On the other hand, Mr. Anupam Srivastava - who appears for the Registrar of Cooperative Societies, submits that to condone the non- compliance of Rule 19 of the Delhi Cooperative Societies Rules, 2007, would lead to encouragement of backdoor entries and societies enrolling members privately without providing an opportunity to the public at large to become members of the Society. He further submits that the draw of lots in respect of the specific flats, even to the regularly enrolled members, can be made only by the DDA and cannot be done privately.

7. Mr.Srivastava further submits that the exemption granted by the Lieutenant Governor vide order dated 17.10.2011 was a matter of the policy decision taken by the Lieutenant Governor in respect of societies which was under the investigation by the CBI and the said policy decision was taken to benefit those members who got caught in the situation without any fault on their part. He submits that this court should not interfere with or lay down a policy decision which only executive is entitled to do.

8. We have considered the submissions of learned counsels for the parties on the aforesaid aspects. There can be no doubt that Cooperative Societies are bound to comply with the provisions of the Act and the Rules, and a Cooperative Society, which is desirous of inviting applications to fill up vacancies on account of resignation of its earlier members, should comply with the provisions of Rule 19 so that all those interested, who, otherwise, satisfy the condition of becoming a member of the Cooperative Society, are able to participate and have a chance to become a member. However, that was not done by the Mandakini Group Housing Society and inter alia, the petitioners were enrolled as Members privately. They have been enrolled as members and have deposited the cost of the flats allotted to them nearly two decades ago, and they have been residing in their flats allotted to them.

9. It is true that it is not for the courts to lay down the policy that the executive would follow and it falls in the domain of the executive to lay down the policy. However, that does not mean that the court while exercising writ jurisdiction would not take into consideration equities which may arise in favour of one or the other party in the case. In the present case, the petitioners were enrolled as Members of the Mandakini Group Housing Society way back in the year 2004. The said decision to enrol the petitioners as members was contemporaneously i.e. in January, 2005 communicated to the Registrar of the Cooperative Societies. The Registrar of the Cooperative Societies issued a show cause notice to the said society alleging non- compliance of the relevant rules.

10. Pertinently, apart from issuing the show cause notice, the Registrar of the Cooperative Societies did not exercise his powers to issue any direction W.P.(C) 9505/2019 Page 5 of 8 Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:16.03.2022 18:55:43 to the said society and even when the management of the said society was superseded with the appointment of an Administrator in the year 2014, he did not take any step to oust these petitioners from membership. Had action been taken against the petitioners and the society aforesaid soon after receiving intimation in January, 2005, and in pursuance thereof the petitioners had been removed from the society soon thereafter, these petitioners would have looked for other avenues to acquire membership of either the same society or some other society, or otherwise, acquire other property for their residence. Due to the inaction on the part of the Registrar of the Cooperative Societies over the years, the situation which has been emerged is that the petitioners have been waiting for regularisation of their membership while having parted with the cost of the flat and while occupying the same. In our view, with passage of time, equities have been created in favour of the petitioners since it would be highly unfair to require them to give up their membership and the flats allotted to them after 18 years from the time they became members and paid for the flats that they acquired. They possibly cannot acquire another accommodation within same budget. In any event, the said society issued a public notice informing the public at large the particulars of the 8 members enrolled, including the three petitioners herein and inviting objections, if any, from the public. No member of the public objected to the enrolment of the said 8 members. Though this cannot be considered as full compliance of Rule 19 of the Delhi Cooperative Societies Rules, 2007, at the same time the publication of the said notice and the lack of response thereto shows that by not inviting applications in the first instance no grave prejudice has been caused to any member of the public. We also do not agree with Mr.Srivastave that by W.P.(C) 9505/2019 Page 6 of 8 Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:16.03.2022 18:55:43 passing directions to the respondent Registrar of the Cooperative Societies to consider the petitioners' applications for membership dehors the compliance of Rule 19 of the Delhi Cooperative Societies Rules, we are laying down a policy.

11. We have only examined the case in the light of the facts and circumstances taken note hereinabove and we make it abundantly clear that the present decision has been taken in the facts of the present case and would not constitute a binding precedent on the respondent Registrar of Cooperative Societies.

12. In these circumstances, in our view, it would not be fair at this late stage to upset the petitioners and to require them to vacate the flats so that a fresh process for enrolment of members could be undertaken in compliance of Rule 19 of the Delhi Cooperative Societies Rules, 2007.

13. In our view, we can still creates deterrence for non-compliance of Rule 19 in future by directing each of the petitioners to deposit costs, which would have a deterrent effect.

14. We direct the petitioners to forward to respondent Registrar of the Cooperative Societies, through their Cooperative Society all the relevant documents for verification of their membership in terms of the provisions of the Act and the Rules, as were enforceable on the date when they made the applications for their membership. In case, it is found that each of these petitioners were otherwise qualified to become members on the date when they made their applications by reference to the provisions of the Act and the Rules as they were operating on the date when such applications were made, the Registrar of the Cooperative Societies shall proceed to regularise the membership. However, before doing so the petitioners shall deposit the W.P.(C) 9505/2019 Page 7 of 8 Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:16.03.2022 18:55:43 amount of Rs.1 lakh each in the Prime Minister's Relief Fund and shall also provide copies of the receipts while forwarding their applications for verification of their membership to the Registrar of the Cooperative Societies. The process of verification should be completed within six weeks of the relevant documents being forwarded by the cooperative societies.

15. The petition stands disposed of accordingly.

VIPIN SANGHI, J DINESH KUMAR SHARMA, J MARCH 10, 2022 rd/rb W.P.(C) 9505/2019 Page 8 of 8 Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:16.03.2022 18:55:43