Full Judgment Text
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 19.04. 2022
+ W.P.(C) 1006/2019
PRAVIN KUMAR .....Petitioner
Represented by: Mr. Pavan Kumar, Advocates.
versus
THE REGISTRAR CO-OPERATIVE SOCIETIES AND ANR.
...... Respondent
Represented by: Mr. Shadan Farasat, ASC with Ms.
Hafsa Khan & Mr. Aman Naqvi,
Advocates.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
MUKTA GUPTA, J (ORAL)
1. Father of the petitioner became a member of respondent no.2 –Group
th
Housing Society i.e. Raj Vihar Cooperative Group Housing Society on 10
October, 2004 when he was employed in the Central Government. Since
then the father of the petitioner followed by the petitioner are running from
pillar to post in getting an approval from the Registrar, Co-operative
Societies (RCS) for allotment of a flat in the respondent no.2- Group
th
Housing Society. Father of the petitioner passed away on 6 July, 2007 and
thereafter the membership was transferred in the name of the petitioner on
st
21 September, 2008, but, neither the name of the father of the petitioner nor
the petitioner was ever referred by the respondent no.1-RCS for allotment of
Signature Not Verified
Digitally Signed
By:NIRMLA TIWARI
Signing Date:29.04.2022
16:23:09
W.P. (C) 1006/2019 Page 1 of 10
the flat in the respondent no. 2-Group Housing Society. The plea
consistently taken by the RCS till date is ‘The original member Late
K.K.Yadav was never a resident of Delhi and he always remained posted
outside Delhi although he was a Central Government employee and
documents submitted by him contained addresses outside Delhi’. When
despite repeated representations, the respondent no. 1 failed to forward the
name of the petitioner for allotment of flat with DDA, the petitioner was
constrained to file the present petition.
th
2. In response to the present petition, an affidavit dated 20 July, 2019
was filed by Mr. Amitabh Joshi, Asstt. Registrar, Cooperative Societies.
According to the said affidavit, the father of the petitioner became a member
th th
of the society on 10 October, 2004 and at that time the circular dated 18
May, 1990 was not relevant as Rule 24 of the Delhi Cooperative Societies
Act, 1973 was amended and this amended rule was applicable on the date on
which the father of the petitioner obtained membership of the society. Thus
it was incumbent for every member of the Group Housing Society to be a
resident of Delhi for a minimum period of three years at the time of applying
for membership in any society. As the original member was not covered
under this category, hence, his case was not considered by the Committee
for allotment of the respondent no.1 constituted under Rule 90 (in short the
th
‘Rule 90 Committee’) and order dated 27 December, 2017 was passed as
per the decision taken by Rule 90 Committee as not a fit case for allotment.
rd
3. After hearing the parties, this Court vide order dated 23 March, 2022
passed the following order:-
“1) Aggrieved by the fact that the petitioner's name as a
member for allotment of a flat by DDA in the respondent
Signature Not Verified
Digitally Signed
By:NIRMLA TIWARI
Signing Date:29.04.2022
16:23:09
W.P. (C) 1006/2019 Page 2 of 10
No. 2-Group Housing Society was not being allowed,
resulting in the order dated 27th December 2017, the
petitioner preferred the present petition.
2) According to the petitioner, the father of the
petitioner became the member of the respondent No. 2-
th
Society on 10 October 2004 when his father was
employed in Central Government. His father passed
away on 6 July 2007, whereafter, the membership was
transferred in the name of the petitioner on 21st
September 2008. However, his name was rejected for
forwarding it to DDA for allotment of a flat to the
th
petitioner in the respondent No. 2-Society on 27
December 2017 on the ground that the original member
Late Sh. K.K. Yadav was never a resident of Delhi and
he remained posted outside Delhi although he was a
Central Government employee. The petitioner has
th
placed on record the circular dated 18 May 1990
which amended the 'bye-law 5' and the Proviso thereof
exempted the officers of All India Service and employees
of Central Government and Public Undertakings of the
Central Government and Delhi Administration for being
residents in the Union Territory of Delhi for two years
or more at the time of enrolment as a member.
th
3) By a subsequent circular dated 16 December 1992,
the requirement of being a resident of Delhi was done
away with and thus, the petitioner's claim that covered
th
by both the circulars dated 18 May 1990 and
th
16 December 1992, the allotment in favour of the
petitioner's father could not be rejected as firstly, he was
a Central Government employee and thus, exempted and
secondly, no prior residence of Delhi was required as
per the second circular.
4) In the counter-affidavit filed, learned counsel for the
th
respondent No. 1 relies upon a notification dated 27
th
April 1997 and claims that after the circular dated 16
December 1992 doing away with the requirement of
residence in Delhi for application as a member of the
Co-operative Society, a fresh notification was issued on
Signature Not Verified
Digitally Signed
By:NIRMLA TIWARI
Signing Date:29.04.2022
16:23:09
W.P. (C) 1006/2019 Page 3 of 10
nd
22 April 1997 which provided that the applicant in the
case of a Co-operative Housing Society has to be a
resident of National Capital Territory of Delhi for a
minimum period of three years at the time of applying
for membership in the Society. He further states that
Rule 24 of the Delhi Co-operative Societies Rules, 1973
was accordingly amended and the same did not include
th
Proviso as provided in the circular dated 18 May 1990
and hence, the petitioner's father could not have been a
valid applicant for the Co-operative Society.
5) After the above-noted circulars, Delhi Cooperative
Societies Act, 2003 (DCS Act) came into force, Sections
22(1) & 22(2) whereof read as under:-
"Persons who may become members-
22.(1) No person shall be admitted as member of a co-
operative society except the following, namely -
(a) an individual competent to contract under section 11
of the Indian Contract Act, 1872 (9 of 1872);
(b) any other co-operative society;
(c) the Government;
(d) a firm, a joint stock company, or any other body
corporate constituted under any law; and
(e) such class or classes of persons or association of
persons as may be notified by the Government in this
behalf Provided that the provisions of clause (a) shall
not apply to an individual seeking admission to a co-
operative society exclusively formed for the benefit of
students of a school or college:
Provided further that no individual shall be eligible for
admission as a member of any financing bank or federal
co-operative society except as provided in clause (m) of
section 2.
(2) Notwithstanding anything contained in sub-section
(1), the Government may, having regard to the fact that
the interest of any person or class of persons conflicts or
is likely to conflict with the objects of any co-operative
society or class of co-operative societies by general or
special order, published in the official Gazette, declare
Signature Not Verified
Digitally Signed
By:NIRMLA TIWARI
Signing Date:29.04.2022
16:23:09
W.P. (C) 1006/2019 Page 4 of 10
that any person or class of persons engaged in or
carrying on any profession, business or employment
shall be disqualified from being admitted, or for
continuing as member or shall be eligible for
membership only to a limited extent of any specified co-
operative society or class of co-operative societies, so
long as such person is or such persons are engaged in
or carrying on that profession, business or employment,
as the case may be”
6) Section 141 of DCS Act, 2003 which provided for
repeal and savings notes as under:-
"Repeal and savings.
141. On the day on which the Delhi Co-operative
Societies Act, 2003 comes into force, the Delhi Co-
operative Societies Act, 1972 (35 of 1972) in force in the
National Capital Territory of Delhi shall stand repealed.
Provided that the repeal shall not affect —
(a) the previous operation of the Act so repealed or
anything duly done or suffered thereunder; or
(b) any right, privilege, obligation or liability acquired,
accrued or incurred under the Act so repealed; or
(c) any penalty, forfeiture or punishment incurred in
respect of any offence committed against the Act so
repealed; or
(d) any investigation, legal proceedings or remedy in
respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment as aforesaid and any
such investigation, legal proceedings or remedy may be
instituted, continued or enforced and any such penalty,
forfeiture or punishment may be imposed as if that Act
had not been repealed".
7) It is thus evident that the Delhi Co-operative
Societies Act 1972 in force in the NCT Delhi stood
repealed and therefore, the bye-laws and the circulars
thereon also automatically got repealed except to the
extent provided in Clauses (a), (b), (c) and (d) of Section
141 of the DCS Act.
8) This aspect that whether the petitioner's case would
Signature Not Verified
Digitally Signed
By:NIRMLA TIWARI
Signing Date:29.04.2022
16:23:09
W.P. (C) 1006/2019 Page 5 of 10
be covered by the DCS Act 2003 or not is nowhere
stated in the Counter-affidavit filed by the respondent
No. 1 is highly deficient. Respondent No. 1 is directed to
file a detailed affidavit within one week with advance
copy to learned counsel for the petitioner.
th
9) List on 19 April 2022 when the Registrar, Co-
operative Societies will be personally present in Court”.
4. Once the presence of the Registrar Cooperative Societies was directed
by this Court, a revised affidavit has been filed by the respondent under the
signatures of Mr. Sanjay Jha, Assistant Registrar.
5. Learned counsel for respondent no. 1 at the outset admits that in the
earlier affidavit filed by the respondent no. 1, complete facts were not
brought to the notice of this Court and only after the directions were issued
for the presence of the Registrar Cooperative Societies for further affidavit,
a revised affidavit has been filed. According to the respondent, the revised
affidavit gives the complete chronology of the various circulars issued in
regard to the requirement of a person being resident of Govt. of NCT of
Delhi for the three years prior to becoming a member of a Group Housing
th
Society in Delhi. In this regard, the first circular issued was on 18 May,
1990 which reads as under:-
“No. F.47/1852/NGH/Coop. Dated the 18.5.90
Circular
The Bye-Law 5 have been amended by substituting a
new bye- law to read as under:-
5(1) Any person shall be eligible to be a member of the
society provided;
(a)He, at the time of enrolment as a member, is domiciled
in the Union Territory of Delhi or has been resident of
the Union Territory of Delhi for two years or more.
Provided that this condition will not apply to officers of
Signature Not Verified
Digitally Signed
By:NIRMLA TIWARI
Signing Date:29.04.2022
16:23:09
W.P. (C) 1006/2019 Page 6 of 10
All India Services and employees of the Central
Government and Public Undertakings of the Central
Government & The Delhi Administration.
It is hereby clarified that this amendment will apply to all
pending cases also. All cases of approval of memberships
may be dealt with accordingly .
( K S Mehra)
Registrar Coop. Societies”
6. As noted above, this circular exempts the Central Government and
Public Sector Undertaking employees of the Central Government or the
Delhi Administration from the condition of being the resident for two years
or more of the Union Territory prior to applying for the membership. This
circular was further modified by the next circular issued on behalf of the
th
Registrar Cooperative Societies dated 16 December, 1992 which reads as
under:-
“it has been decided by the Government of National
Capital Territory of Delhi to discontinue the requirement
of proof of residence for membership of cooperative
group housing societies with immediate effect . The cases
which have been detained only on account of this reason
may be examined in the light of these orders. In future the
requirement of proof of residence in Delhi for clearance
of membership of cooperative group housing societies
will not be insisted upon.”
nd
7. It may be noted that thereafter a further notification dated 22 April,
1997 was issued by the Registrar Cooperative Societies in exercise of its
powers under Section 97(1) of the DCS Act, 1973 whereby Clause IV was
introduced by way of amendment in Rule 24 of the DCS Rules 1973. As per
the said amendment, the requirement of being a resident of NCT Delhi, prior
to applying for membership in Group Housing Society was re-introduced
Signature Not Verified
Digitally Signed
By:NIRMLA TIWARI
Signing Date:29.04.2022
16:23:09
W.P. (C) 1006/2019 Page 7 of 10
without any exception for the Central Government employees however the
said notification was never gazetted and thus did not come into force.
th
8. The respondent no. 1 has further relied on a notification dated 5
December, 2001 which reads as under:-
(TO BE PUBLISHED IN THE DELHI GAZETTE
PART IV EXTRAODINARY)
GOVERNMENT OF NATIONAL CAPITAL
TERRITORY OF DELHI (COOPERATIVE DEPARTMENT)
NOTIFICATION
NO. F. 47/LEGAL/POLICY/COOP./92/2305-2316
DATED: 05/12/2001
In exercise of the powers conferred under Section 88
of the Delhi Cooperative Societies Act, 1972, the Hon’ble Lt.
Governor of the National Capital Territory of Delhi is
pleased to exempt the operation of the condition of Model
Bye-law No. 5(1) (a) during the period from 16.12.1992 to
22.04.1997 with regard to the proof of residence in respect of
the members of Group Housing/ House Building Societies.
By order and in the name of the Lt. Governor of the National
Capital Territory of Delhi
(N. Diwaker)
Special Secretary (Cooperation)
nd
9. Since the notification dated 22 April, 1997 was never gazetted and
th
thus did not come into force, the notification dated 5 December, 2001
nd
clarifying the notification dated 22 April, 1997 cannot have any force. The
Delhi Cooperative Societies Act, 1973 was repealed by the Delhi Co-
operative Societies Act 2003 and received the assent of the Hon’ble
rd st
President of India on 3 March 2004, however, it came into force on 1
April, 2005 and the Rules thereunder were made applicable from 2007
Signature Not Verified
Digitally Signed
By:NIRMLA TIWARI
Signing Date:29.04.2022
16:23:09
W.P. (C) 1006/2019 Page 8 of 10
which re-imposed the condition of being a resident of NCT Delhi prior to
applying for membership in terms of Sub-Clause 6 of Rule 19(1).
10. Petitioner’s father became a member of the respondent No. 2 society
th
on 10 October, 2004 when admittedly the 1992 circular prevailed, when
there was no requirement of being a resident of the Union Territory of Delhi
prior to becoming a member of a group housing society in Delhi. The DCS
rules notified under the DCS Act, 2003 have no retrospective application.
11. A perusal of the revised affidavit thus clearly shows that despite there
being no requirement of the petitioner’s father being a resident for the last
two-three years preceding the applying for membership of the group housing
society, his case was never referred to DDA for allotment of the flat by Rule
90 Committee ostensibly on the ground that the father of petitioner was not
a resident of Delhi before he applied for the membership of the respondent
no.2-society.
12. The present case clearly shows the sorry state of affairs prevalent in
the functioning of the Registrar Cooperative Societies and the manner in
which incomplete and incorrect affidavits are filed before this Court.
13. Considering the revised affidavit filed now, the minutes of meeting
th
dated 27 December, 2017, whereby the case of the petitioner for
recommendation was rejected, to that extent is set aside. The respondent is
directed to refer the case of the petitioner for allotment of flat with DDA
within four weeks. The DDA on receipt of recommendation of respondent
no. 1 will complete the necessary formalities within eight weeks thereafter.
14. In view of the assurance rendered by the Registrar, Cooperative
Societies who is personally present that every endeavour will be made to
streamline the filing of proper affidavits before this Court, this Court is
Signature Not Verified
Digitally Signed
By:NIRMLA TIWARI
Signing Date:29.04.2022
16:23:09
W.P. (C) 1006/2019 Page 9 of 10
refraining from imposing the cost.
15. The writ petition is accordingly disposed of.
(MUKTA GUPTA)
JUDGE
(NEENA BANSAL KRISHNA)
JUDGE
APRIL 19, 2022/pa
Signature Not Verified
Digitally Signed
By:NIRMLA TIWARI
Signing Date:29.04.2022
16:23:09
W.P. (C) 1006/2019 Page 10 of 10