G HEMANT vs REGISTRAR COOPERATIVE SOCIETIES & ORS.
$~53
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6395/2024
G HEMANT ….. Petitioner
Through: Mr. Ashwani Kumar Dhatwalia, Ms. Iti Sharma and Mr. Puneet Sharma Advocates
versus
REGISTRAR COOPERATIVE SOCIETIES
& ORS. ….. Respondent
Through: Ms. Harshita Nathrani, Adv for Mr. Sameer Vashisht, ASC(C) GNCTD
Ms. Mrinalini Sen Gupta, Standing Counsel for DDA
% Date of Decision: 06th May, 2024.
CORAM:
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMOHAN, ACJ: (ORAL)
1. Present writ petition has been filed challenging the impugned order dated 19th March, 2012, passed by the Respondent No.1 Registrar of Co-operative Societies (RCS) in F. No. F46/1411/HB/WEST/422-424, holding that the Petitioner herein was not eligible to be enrolled as a member in Respondent No. 2 Mianwali District Cooperative House Building Society Ltd. (Society) and consequently, dismissed his claim for allotment of a plot, ad-measuring 400 sq. yds.
1.1. Petitioner has also impugned the order dated 15th December, 2023, passed by the Financial Commissioner in a revision petition bearing Case No. 251/2012, upholding the Respondent No.1s order dated 19th March, 2012, and dismissing the said revision petition.
2. Brief facts necessary for deciding the present petition are as under:
2.1. It is stated that the Petitioner herein was enrolled as a member of the Respondent No.2 Society on 30th August, 1981 vide Membership No. 1023 against a plot of 400 sq. yards category and he deposited a sum of Rs. 48,763/- towards the cost of the plot. It is stated that the Petitioners name was approved in a unanimous resolution passed by the then managing committee of the Respondent No.2 Society and a share certificate was issued.
2.2. It is stated that the Petitioners name was forwarded by the RCS to Respondent No.3 Delhi Development Authority (DDA) vide letter dated 3rd May, 1985, for allotment of plot in the Society, however, his name was not included in the draw of lots held by DDA on 15th April, 1986.
2.3. It is stated that subsequently, the Petitioners name was withheld and an inquiry was initiated under Section 55 of the Delhi Co-operative Societies Act, 1972 (DCS Act), to re-inquire into the validity of his membership in the controversy that the Petitioner herein was a minor at the time of filing of application for membership.
2.4. It is stated that subsequently, in W.P.(C) No. 5580/1993, this Court vide order dated 30th October, 1995, directed the Respondent No.1, RCS, to appoint a Chairperson to decide the objections raised against any member of Respondent No.2 Society. It is stated that in compliance with the said order, Sh. R.C. Richhariya, Director (Personnel & Grievances), Govt. of India (Retd.) was appointed as Chairperson. It is stated that the said Chairperson on 11th April, 1996 finalised a list of 632 members which included the Petitioners name at Sr. No. 569 and the objections against the Petitioners membership/eligibility were rejected.
2.5. It is stated that despite the aforesaid, due to non-allotment of plot in Respondent No.2 Society, the Petitioner herein filed W.P.(C) 24099/2005 before this Court seeking directions to Respondents for allotment of a plot. The said petition was disposed of vide order dated 25th November, .2010 with direction to Respondents to expeditiously consider and decide the case of Petitioner for allotment of plot.
2.6. It is stated that in pursuance to the aforesaid, Respondent No.1, RCS, passed an order dated 13th February, 2012, disqualifying the Petitioner from the membership on the grounds that the Petitioner was a minor and financially dependent on his parents on the date he made the application for membership in the Society.
2.7. It is stated that, however, this Court directed Respondent No.1 to reconsider the matter afresh and pass a fresh reasoned order on the issue of membership and allotment.
3. Respondent No.1 in pursuance to the aforesaid directions, passed the impugned order dated 19th March, 2012 and held that the Petitioner was disqualified from being a member of the Respondent No.2 Society under Rule 25(1)(c)(i) of the Delhi Cooperative Societies Rules, 1973 as he was financially dependent on his parents and did not have financial sources to make the payment towards membership and the cost of plot. The RCS also took note of the fact that the mother of the Petitioner, who already held a plot1 in her name in the Society was the executive member of the Managing Committee at the relevant time.
4. The said order dated 19th March, 2012, has been upheld by the Financial Commissioner vide its order dated 15th December, 2023.
5. Learned counsel for the Petitioner states that the RCS and the Financial Commissioner have held that the Petitioner is disqualified as (i) at the time of enrolment, Petitioner did not have the financial sources to make payment towards the cost; (ii) the Petitioners mother had been allotted a residential plot in the same Society; and (iii) the Petitioners mother was the executive member in the Managing Committee at the relevant time. He states that none of these findings can attract the ineligibility under Rule 25 of the DCS Rules, 1973.
5.1. He relies upon Memorandum dated 3rd August, 1988 (Memorandum), issued by the RCS clarifying its understanding of Rule 25 and more specifically clause (c) (i), (ii) and (iii). He states that as per the said clarification, the Petitioner herein, who was a major on the date of his enrolment as a member, is eligible.
5.2. He lastly, states that there are at least three similarly placed individuals, who have been admitted to membership and allotted plots in the Society. He states that therefore, the Petitioners disqualification is in violation of Article 14 of the Constitution.
6. We have heard the learned counsel for the Petitioner and perused the record.
7. The Petitioner has not disputed that his mother was the executive member of the Managing Committee, in the Society. The Petitioner has also not disputed that his mother was allotted a residential plot no. A-7/21 in this Society. In addition, both the RCS and the Financial Commissioner have returned concurrent finding of facts that the Petitioner herein had no financial resources to make the payment of Rs. 48,763/- towards the cost of the plot on 4th September, 1981 and towards the membership fees. In these facts, the Financial Commissioner concluded that the plot was being held benami by the parents of the Petitioner in the name of their children.
8. The intent of Rule 25 of the DCS Rules, 1973, is to disentitle an individual who himself/herself or whose spouse and/or dependent children own a residential house or a plot of land in the National Capital Territory of Delhi (NCT of Delhi). In the facts of the present case, the Petitioners mother, Mrs. Bhag Gera, was allotted a plot No. A-7/21 in this Society. The said plot was validly allotted to Mrs. Bhag Gera on a declaration that neither she nor her spouse or her dependent children own a residential house or plot in NCT of Delhi.
9. However, after the plot was allotted to Mrs. Bhag Gera, she as an executive member of the Society facilitated the allotment of plot in favour of her son i.e., Petitioner G. Hemant and younger son i.e., Sudhir Kumar. The RCS and the Financial Commissioner have returned a finding of fact that neither the Petitioner nor Mr. Sudhir Kumar had any independent financial resources to make payment towards the allotment of plot at the relevant time in the year 1981. The RCS and the Financial Commissioner held that the funds had been provided by the parents of the Petitioner and Mr. Sudhir Kumar. In these peculiar facts, the RCS and the Financial Commissioner have concluded that Mrs. Bhag Gera has sought to overreach the salutary intent of the legislature in the bar of Rule 25 of DCS Rules, 1973, which intends that in view of the housing shortage and the limited availability of the resource of land, plots/flats in a cooperative society should be allotted per family and not per person. This is especially so when the family members exist as one unit and are dependent on each other.
10. In the facts of this case, if the contention of the Petitioner is accepted, the effect would be that Mrs. Bhag Gera, her elder son i.e., the Petitioner herein and her younger son i.e., Mr. Sudhir Kumar, would all become entitled to allotment of one plot each in the Society, all in the year 1981 and in a timeline when both the sons are financially dependent on the parents and living together as a single unit. Thus, in a family of four members, three members would have become entitled to a plot each in a single society.
11. In our considered opinion, such allotments if permitted within the same family members in the same society, would be contrary to the object and reasons of the promulgation of the Delhi Cooperative Societies Act, 1972, which intended to make available the scarce resource of land in Delhi at concessional prices and with governmental aid, to each family as opposed to each person.
12. The Rule 25 (2) of the DCS Rules, 1973, was a subject matter of interpretation before the Full Bench of this Court in Daulat Ram Mehnidratta v. Lt. Governor of Delhi and Ors2, wherein the Court returned its findings on the public interest served by this Rule and emphasised that the intention was to avoid concentration of housing plots in the hands of few individuals. The Full Bench held that the object of this Rule is meant to advance the interest of the member in accordance with the cooperative rules. The relevant portion reads as under:
8.
The Lt. Governor does not have to invoke the particular matters mentioned in sub-section (2) to be able to frame a rule like Rule 25 it will be appreciated that Rule 25(2)(1) and (2) has the effect of providing that a person will be disqualified for being a member if he owns a residential house or a plot of land in his or in his wife’s or in the name of his dependent children. The purpose this rule is obvious. As there is large scale housing shortage and as land is limited the Government must so frame and modulate its policies that it should be able to satisfy as large a number of people in their need of providing houses to them. This can only be done if the distribution in the shape of land at concessional prices and with governmental aid is done to meet the genuine need of each family. This purpose would certainly be defeated it there was no limitation on a person or on a family acquiring more than one residential plot. It is true that there may not be any legal bar to a family or a person owning more than one house. If the person dies, want to own it and if there is no prohibition in law he may do so but then he cannot be permitted to avail of the instrumentality of a cooperative society to further this end. We must remember that Rule 25(1) (c) (2) and (2) have been framed and is applicable to only member of the Co-op. Societies. Sec. 4 of the Delhi Cooperative Societies Act 1972 clearly lays down that a society which has as its object the promotion of economic interests of its members in accordance with co-operative principles, or a society established with the object of facilitating the operations of such a society, may be registered under this Act. Thus the societies registered under the Act and to which Rule 25 will be applicable are societies which are meant to advance the interests of members in accordance with cooperative principles
.
The object of co-operative society is not to earn profits but to enable the members to improve their economic conditions by helping them in their pursuits. Thus the cooperative societies like the present one which have the effect to obtain the land at concessional rate from the government and to build houses must necessarily have limitation that only members who are in real need of houses would be permitted to become members and to take the benefit of land allotment. In the garb of cooperative society a person cannot be permitted to avoid the stress of market prices and take a concessional advantage in obtaining a plot.
(Emphasis Supplied)
13. The impugned orders of the RCS and the Financial Commissioner further the objective of the DCS Act and DCS Rules, 1973, as interpreted by the Full Bench. In fact, the reliance placed by the RCS on the judgment of the Supreme Court in Ishwar Nagar Cooperative Housing Building Society v. Parma Nand Sharma and Ors.3 is apposite. In the said judgment as well the Supreme Court was concerned with Rule 25 of DCS Rules, 1973 and similarly, the Court held that the object of enacting the said Rule 25 was in furtherance of the objective of the principal Act which aimed at providing land/flat to the economically weaker sections and was not intended to permit a party to grab land at concessional rates. The relevant portion reads as under:
18. A cooperative society may be defined as a voluntary association of individuals combined to achieve an improvement in their social and economic conditions through the common ownership and democratic management of the instruments of wealth. (Vide Row’s Encyclopaedia of Cooperative Societies Law in India, Vol. 2, p. 1.) Experience has shown that voluntary organisations like cooperative societies are the best system which can suit the needs of poor and weaker sections. The object of a cooperative society is not to earn profits but to enable the members to improve their economic conditions by helping them in their pursuits. Thus, the cooperative societies like the present one which seek to obtain the land at concessional rate from the Government and to build houses must necessarily have a limitation in that only members who are in real need of houses should be permitted to become members and to take the benefit of land allotment. In the garb of a cooperative society, a person cannot be permitted to avoid the stress of market prices and take a concessional advantage in obtaining a plot. Thus Rule 25(2) does not in any manner go beyond the ambit of rule-making authority given under Section 97(1) of the Act.
(Emphasis Supplied)
14. If Rule 25 as interpreted by the petitioner is not attracted to the petitioners allotment, it would on the said interpretation itself certainly set aside the allotment in his mother, Mrs. Bhag Gera name.
15. The reliance placed by the Petitioner on the Memorandum dated 03rd August, 1988 (Memorandum) to contend that the Petitioner being an adult son, even though financially dependent on his parents, was entitled to membership and allotment of land in this Society after his mother Mrs. Bhag Gera had already been allotted land in the same Society, does not commend to this Court. As noted above, if the contention of the Petitioner is accepted then the family of the Petitioner would have been allotted three plots in the same Society, which is a concessional land. The effect of this Memorandum militates against the object of the DCS Act, more specifically Rule 25 of the DCS Rules, 1973 as enunciated by the Supreme Court and Full Bench of this Court in the judgments noted above.
16. The legislature while drafting Rule 25 of DCS Rules, 1973 consciously used the phrase dependent children as opposed to minor children. The phrase dependent children contextually refers to financial dependence and includes adult children. Thus, while the legislature excluded the financially independent adult child from the ambit of Rule 25, it included the financially dependent adult child as it raises a presumption that an immovable property, which is purchased in the name of the dependent child from the funds of the parent, is available for the use of the parent. And, since the intent of the DCS Act is to provide plots/flats to landless residents such a parent who has available at his/her disposal the property standing in the name of a dependent adult child is ineligible.
17. Thus, while a young financially independent adult is not circumscribed by the Rule 25 of DCS Rules, 1973 to apply for membership even if his parent has a plot/flat in his/her name, however, this distinction cannot be extended to an individual such as the Petitioner who is a but a name lender for his parents. As, if permitted it would overreach the salutary object of the Rule 25 of the DCS Rules, 1973. The clarification issued by the RCS in the Memorandum to this effect is contrary to the object of the DCS Act and Rule 25 of the DCS Rules, 1973 and is hereby struck down.
18. The contention of the Petitioner that there has been violation of Article 14 of the Constitution as similarly placed individuals have been admitted to membership in this Society, does not commend to this Court as it is settled law that a claim cannot be entertained on the grounds of negative equality. Since, we have held that the Petitioner was rightly held ineligible to be admitted to membership, this ground is bereft of any merits.
19. This Court in exercise of its equity jurisdiction under Article 226 of the Constitution is unwilling to interfere with the findings of the RCS and the Financial Commissioner, in the facts of this case.
20. Accordingly, the present petition along with the pending applications is disposed of.
ACTING CHIEF JUSTICE
MANMEET PRITAM SINGH ARORA, J
MAY 6, 2024/msh/aa
1 Plot No. A-7/21, Mianwali Nagar District Cooperative House Building Society Ltd.
2 (1983) 4 DRJ 66
3 (2010) 4 SCC 230
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