AMITABH DASSANI vs THE REGISTRAR, COOP. SOCIETIES & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 18.10.2024
Judgment delivered on: 08.11.2024

+ W.P.(C) 7478/2016, CM APPL. 34608/2017 & CM APPL. 9479/2024

AMITABH DASSANI …Petitioner

versus

THE REGISTRAR, COOP. SOCIETIES & ORS … Respondents

Advocates who appeared in this case:
For the Petitioner : Mr. Rohit Minocha, Mr. Kaushlendra D. Pandey, Advocates.

For the Respondent : Mr. Sandeep Kumar, Advocate for Respondent no.2-Society.
Mr. Udit Malik and Mr. Vishal Chanda, Advocates for GNCTD.
Ms. Kriti Khokhar, Mr. B.S. Dhir, Ms. Shuchi Sood, Advocates for DDA.
CORAM:
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE TUSHAR RAO GEDELA
J U D G M E N T
TUSHAR RAO GEDELA, J.
1. Present writ petition has been filed under Article 226 of the Constitution of India seeking a direction to the respondent no.1/Registrar, Co-operative Societies (for short ‘RCS’) to complete the formalities for possession of “A” type flat to the petitioner and a direction to the respondent no.l/RCS and respondent no.3/Delhi Development Authority (DDA) to deliver physical possession of Flat No.570/A-432 to the petitioner.
2. The facts, shorn of unnecessary details and germane to the issue at hand, are as under:-
a) It is the case of the petitioner that his mother namely Mrs. Kanwar Dassani enrolled as a member in the respondent no.2/Society sometime in the year 1986. It is also claimed that the membership of the said society was transferred in the name of the petitioner on 19th June, 1991. It is stated that on 24th June, 1991, an allotment letter was issued in favour of the petitioner entitling him for ‘A’ category flat.
b) The respondent no.1/RCS appears to have issued a Circular dated 16th December, 1992 whereby the requirement of proof of residence in Delhi of an individual seeking membership of a Cooperative Society, was dispensed with. It also appears that the said stipulation was reiterated by respondent no.1 on 24th February, 1994 whereby the Cooperative Societies were also directed to amend their bye-laws accordingly.
c) The respondent no.1/RCS reintroduced the pre-condition of three years’ residence in Delhi as a necessary eligibility condition for an individual to seek membership in a Cooperative Society vide notification dated 22nd April, 1997 and reiterated in the Circulars dated 3rd January, 2001 and 5th December, 2001. However, vide judgment dated 29th April, 2022 in the case of T.N. Haokip vs. Registrar, Co-operative Societies & Ors., 2022 SCC OnLine Del 1360, the said notification dated 22nd April, 1997 was held to be unenforceable on the basis that the same was never gazetted in accordance with law. On the same basis, the subsequent Circular dated 5th December, 2001 was also held to be inapplicable since it was clarificatory in nature.
d) It is stated that the respondent no.1/RCS having received complaints from the members of the respondent no.2/Society, expelled the then Managing Committee and appointed Sh. A.K. Singh as the Administrator of the Society on 10th April, 2001.
e) On certain disputes having arisen with regard to excess members having been enrolled in comparison to the numbers of plots to be allotted, certain members filed a writ petition being W.P.(C) 2098/2004 before this Court. Vide order dated 5th September, 2006, this Court endorsed the appointment of one Urmila Rani (Retd. Additional District Judge) as an Inquiry Officer to conduct inquiry into the said disputes. In the interregnum, the Delhi Cooperative Societies Act, 2003 was promulgated repealing the Act of 1973. In the year 2007, the Delhi Cooperative Societies Rules, 2007 too were enforced. The pre-condition of an individual to be a resident of NCT of Delhi prior to applying for membership was re-introduced as per sub-clause 6 of clause (1) of Rule 19 of the DCS Rules, 2007.
f) The petitioner claimed to have filed a writ petition being W.P.(C) 3829/2007 seeking a direction to the respondents to hand over physical possession of the flat. Noticing that the previous Inquiry Officer had failed to conclude the inquiry as directed vide order dated 5th September, 2006, this Court vide order dated 23rd November, 2009, appointed one S.K. Jha, the then Joint Registrar as the Inquiry Officer to complete the said inquiry.
g) In compliance with the aforesaid direction, the Inquiry Officer filed his Report on 6th July, 2011 declaring, amongst other aspects, petitioner to be eligible for membership and allotment of “A” Category flat in the respondent no.2/Society. This Report was accepted by respondent no.1/RCS vide detailed order dated 1st December, 2011. It is stated that the said order held the petitioner to be eligible for allotment of Flat No.570/A-432 after it is vacated by one Arvinder Singh Sahni, who was simultaneously found to be ineligible. Aggrieved members challenged the order dated 1st December, 2011 of the respondent no.1/RCS in a Revision petition no.17/2012 before the Financial Commissioner. It is stated that the Financial Commissioner vide order dated 15th January, 2013, while not disturbing the claim of the petitioner, remanded the twenty-three (23) cases filed by the aggrieved members of the respondent no.2/Society to respondent no.1/RCS for fresh orders.
h) It is the case of the petitioner that though the membership and the eligibility of petitioner to allotment of “A” category flat had been settled in the aforesaid litigations, yet the respondent no.2/Society again issued a letter to the petitioner asking him to submit residence proof prior to his membership. It appears that there were a number of correspondences from and between the petitioner and the respondent no.2/Society in that regard, yet the respondent no.2/Society remained adamant in neither recognizing the petitioner’s membership nor allotting an “A” category flat to the petitioner, on the pretext that the petitioner did not fulfil the condition of being a resident of NCT of Delhi prior to transfer of membership to him. In that backdrop, the present writ petition has been filed seeking directions in the nature as mentioned above.
3. Mr. Sandeep Kumar, learned counsel appearing for the respondent no.2/Society argued that in the present case, even the mother of the petitioner, who is stated to have enrolled as a member in the year 1986 was herself not a resident of GNCT of Delhi, hence transfer of such membership in favour of the petitioner in the year 1991, would not confer any rights upon the petitioner. According to him, if the membership of the mother was defective, by no stretch of imagination could the transfer of a defective membership confer a lawful right of membership to the petitioner.
4. Learned counsel for respondent no.2/Society invited attention to the Circular dated 16th December, 1992, issued by the respondent no.1/RCS to submit that a plain reading of the said Circular indicates that the requirement of proof of residence in GNCT of Delhi for the purposes of membership of Cooperative Group Housing Societies will not be insisted upon, was only prospective and not retrospective. In other words, he urged that prior to the said Circular of the year 1992, the requirement of proof of residence in GNCT of Delhi was a necessary concomitant for the eligibility for membership to a Cooperative Group Housing Society. He argued that admittedly, the mother of the petitioner and the petitioner were never residents of Delhi. Consequently, their memberships cannot be held to be legally valid. Learned counsel for the respondent no.2/Society submits that resultantly, the present writ petition is without any merit.
5. Learned counsel for respondent no.2/Society invited attention to the byelaws of the respondent no.2/Society, particularly to Section III respecting eligibility condition for Membership. It was contended that as per Clause 5(i)(a), an individual seeking membership was to necessarily be domiciled in Delhi/New Delhi/Delhi Cantonment. That being the position of byelaw of respondent no.2/Society, the membership of the mother of the petitioner as also the transfer of such membership to the petitioner would be contrary to, not only the Rules under the DCS Act, but also the bye-laws of the respondent no.2/Society. On that basis, learned counsel urged that the petition be dismissed being devoid of any merits.
6. Learned counsel for respondent no.2/Society tried to distinguish the judgment of this Court in T.N. Haokip (supra) by contending that in that case, the petitioner therein became member of the Society therein on 30th September, 2003. It was also contended that in the said case, the validity or applicability of the Circulars dated 22nd April, 1997 and 5th December, 2001 was considered. Since the notification dated 22nd April, 1997 was never gazetted, this Court in T.N. Haokip (supra) declared that the same cannot have any force of law. On the same basis, the Circular dated 5th December, 2001 was also held to be inapplicable. He vehemently contended that in the present case, the petitioner claims to have become a member by transfer in the year 1991. The Circular dated 22nd April, 1997, having been brought into force much after the alleged membership of petitioner in the year 1991 and having no applicability to his case, the ratio laid down in T.N. Haokip (supra) would not be applicable. On the aforesaid basis, learned counsel for respondent no.2/Society vehemently contended that the petitioner is not a valid member and cannot seek any relief as sought in the writ petition which may be dismissed with costs.
7. This Court has heard the submissions of learned counsel for the respondent and perused the records and considered the judgement relied upon.
8. It is not doubted that the mother of the petitioner was enrolled as member of the respondent no.2/Society in the year 1986. Apparently, no objection was raised by the respondent no.2/Society regarding the lack of residence proof of being resident of Delhi qua the mother of the petitioner. Equally, no such objection appears to have been recorded or registered when the membership was transferred from the name of the mother to the petitioner in the year 1991. This remains an undisputed position.
9. Though this Court would advert to the arguments of learned counsel for the respondent no.2/Society in a while, yet it would be pertinent to note first, a very relevant and significant fact i.e., the respondent no.2/Society had registered a complaint under Section 25 of the DCS Act, 1973 regarding cessation of membership of the mother of the petitioner as well as the petitioner himself, on the ground of not being a resident of Delhi, thus incurring disqualification. The respondent no.1/RCS vide order dated 21st May, 1998 dropped the proceedings under Section 25 of the DCS Act, 1973 against the petitioner, predicated on the finding of genuine transfer of membership from the mother to the petitioner. This order dated 21st May, 1998 appears to have been challenged by the respondent no.2/Society, during the pendency of present proceedings, and after an insurmountable delay of twenty-one (21) years before the Financial Commissioner by preferring a revision petition bearing Case No.67/2019. This revision petition was dismissed by the Financial Commissioner by a detailed order on 21st December, 2023 upholding the dropping of proceedings under Section 25 of the DCS Act, 1973 against the petitioner on the ground of unexplained and considerable delay. No challenge has been laid to the order of the Financial Commissioner which appears to have become final between the parties.
10. The other leg of facts which would enure to the benefit of the petitioner is with respect to the findings in the Inquiry Report submitted by the Inquiry Officer appointed in compliance with the order dated 23rd November, 2009 of this Court in W.P.(C) 3829/2007. The Inquiry Report dated 6th July, 2011 clearly recorded a finding that the petitioner’s membership was genuine and it appears to have upheld his entitlement to “A” category Flat in respondent no.2/Society. It appears that this Report was accepted by the respondent no.1/RCS vide order dated 1st December, 2011. It is claimed that in para 5 of the said order, petitioner was found entitled to Flat no.570/A-432 in respondent no.2/Society. The order dated 1st December, 2011 of the respondent no.1/RCS was challenged by the aggrieved members of respondent no.2/Society before the Financial Commissioner. The Financial Commissioner vide order dated 15th January, 2013 did not disturb the finding recorded in favour of the petitioner respecting the entitlement to the afore-referred flat. Thus, it appears that the proceedings concluded in the petitioner establishing the genuineness of his membership of respondent no.2/Society transferred from his mother, unequivocally. Though this fact may not impact the present lis directly, yet it would be significant to note that this Court vide order dated 23rd July, 2012, dismissed the W.P.(C) 3890/2012 filed by three (3) ineligible members of the respondent no.2/Society.
11. Ergo, this Court finds that on facts, the petitioner has successfully established his membership to respondent no.2/Society as genuine and simultaneously, the right and entitlement to Flat no.570/A-432 in respondent no.2/Society.
12. Another argument urged on behalf of the respondent no.2/Society was on cessation of membership or invalidity of the membership of the mother of the petitioner and petitioner on account of lack of proof of being resident of Delhi, prior to applying for membership of respondent no.2/Society. This submission was based on alleged violation of Rules formulated under the DCS Act, 1973. No Circular or notification mandating such condition at the time when the mother of the petitioner was enrolled as member in 1986 has been shown or placed on record. If the membership of the mother of the petitioner is found to be genuine, there could, possibly, be no impediment to the transfer of such membership in the name of the petitioner. Besides, all this controversy appears to have been examined in detail on facts and put to rest in the litigations noted in the preceding paragraphs. Moreover, the findings recorded in the orders of the Financial Commissioner dated 21st December, 2023 have attained finality. Having lost on all grounds, respondent no.2/Society cannot re-agitate or resist the bona fide and genuine claim of the petitioner.
13. That said, in view of the overwhelming facts and findings recorded by the statutory Competent Authorities under the DCS Act, 1973 and the DCS Act of 2003, this Court need not examine the applicability of the ratio in T. N. Haokip (supra) to the facts of the present case.
14. Resultantly, the writ petition is allowed. The respondent no.2/Society is directed to forward all the requisite documents for verification to respondent no.1/RCS within four (4) weeks from today. The respondent no.1/RCS shall complete the formalities and place the same before Rule 90 Committee qua the allotment of Flat No.570/A-432 in favour of the petitioner, in accordance with law within six (6) weeks thereafter.
15. Pending applications also stand disposed of.

TUSHAR RAO GEDELA, J

MANMOHAN, CJ
NOVEMBER 08, 2024/rl

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