Full Judgment Text
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CASE NO.:
Appeal (civil) 2634-2635 of 2003
PETITIONER:
Shri O.P. Choudhry
RESPONDENT:
Rehabilitation Ministry Employees Cooperative House Building Society & Ors.
DATE OF JUDGMENT: 02/04/2003
BENCH:
S. Rajendra Babu & G.P. Mathur
JUDGMENT:
JUDGMENT
(Arising out of S.L.P.(C) Nos.5109-5110 of 2001)
With Civil Appeal Nos. of 2003 (Arising out of S.L.P. (C)
Nos.7713/2001, 661/2002, 5439/2001, 5242/2001, 7599/2002, 13674/2001,
7602-04/2002, 17365/2002, 17366/2002 and 17368/2002) & C.A. No.6979
of 2001
G.P. Mathur, J.
Special leave granted.
These appeals are directed against a common judgment and order
dated 28.2.2001 of a Division Bench of the High Court of Delhi by which
large number of writ petitions were decided and, therefore, they are being
decided by a common order.
A cooperative society known as Rehabilitation Ministry Employees
Cooperative House Building Society Ltd. (hereinafter referred to as ’the
Society’) was formed in the year 1959. The Society was incorporated with
the object of providing plots and houses to the employees and ex-employees
of the Ministry of Rehabilitation and its subordinate offices. Out of
compensation pool, comprising mainly of evacuee properties as well as
properties acquired by Government for rehabilitating displaced persons from
Pakistan, some land was allotted to the society by the Department of
Rehabilitation by the letter dated 26.5.1970 under the Displaced Persons
(Rehabilitation & Compensation) Act, 1954. The society took steps for
allotment of plots to its members and in that connection various kinds of
disputes regarding disqualification, eligibility, seniority, etc. of the members
were raised. These disputes were decided by the Registrar, against whose
decision revisions were filed, which were decided by the Financial
Commissioner. The decision of the Financial Commissioner was challenged
by filing writ petitions by the members of the society and in some cases by
the society itself. All these writ petitions have been decided by the
common judgment and order dated 28.2.2001 of the High Court, which is
the subject matter of challenge in the present appeals.
The eligibility of a member to get a plot from the society or his
disqualification has to be examined having regard to the provisions of the
Delhi Cooperative Societies Rules , 1973 (hereinafter referred to as ’the
Rules’), bye-laws of the society and an earlier litigation concerning
allotment of land wherein a settlement had been arrived at during the
pendency of a special leave petition in this Court. Rule 25 of the Rules
which deals with disqualification reads as under :
"25. Disqualification for Membership.
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(1) No person shall be eligible for admission as a member of
a co-operative society if he-
(a) has applied to be adjudicated an insolvent or is an
undischarged insolvent; or
(b) has been sentenced for any offence other than an offence
of a political character or an offence not involving moral
turpitude and dishonesty and a period of five years has
not elapsed from the date of expiry of the sentence;
(c) in the case of membership of a housing society:-
(i) he owns a residential house or a plot of land for the
construction of a residential house in any of the approved
or unapproved colonies or other localities in the Union
Territory of Delhi, in his own name or in the name of his
spouse or any of his dependent children, on leasehold or
freehold basis provided that disqualification as laid down
in sub-rule (1)(c) (i) shall not be applicable in case of
persons who are only co-sharers of joint ancestral
properties in congested localities (slum areas) whose
share is less than 66.72 sq. metres (80 sq. yards) of land;
(ii) he deals in purchase or sale of immovable properties
either as principal or as agent in the Union Territory of
Delhi; or
(iii) he or his spouse or any of his dependent children is a
member of any other housing society except otherwise
permitted by the Registrar.
(2) Notwithstanding anything contained in the rules or the
bye-laws of the co-operative society, if a member
becomes, or has already become, subject to any
disqualifications specified in sub-rule (1), he shall be
deemed to have ceased to be a member from the date
when the disqualifications were incurred.
(3) A member who ceases to be a member of a co-operative
society under sub-rule (2) shall not be entitled to exercise
rights of membership or incur liability as member with
effect from the date referred to in sub-rule (2) but as from
the date he becomes a creditor of the co-operative
society in respect of the amount due to him on account of
paid-up share capital, deposit, cost of land deposited or
any other amount paid by him to the co-operative society
as its member. As from the date of his ceasing to be a
member of the society under sub-rule (2), the amount
standing to his credit shall be paid to him by the co-
operative society within 3 months and when the co-
operative society is already under liquidation, the amount
due to him will be credited as a debt due to a third party
from the co-operative society.
(4) If any question as to whether a member has incurred any
of the disqualifications referred to in sub-rule (1) arises,
it shall be referred to the Registrar for decision. His
decision shall be final and binding on all concerned. The
power of the Registrar under this rule shall not be
delegated to any other person appointed to assist the
Registrar."
The society in question is admittedly a housing society and, therefore,
Rule 25(1)(c) is applicable to it. According to clause (i) of this sub-rule, no
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person shall be eligible for admission as a member of the society in question
if he owns a residential house or a plot of land for construction of a
residential house in any of the approved or unapproved colonies or other
localities in the Union Territory of Delhi either in his own name or in the
name of his spouse or any of his dependent children on leasehold or freehold
basis. The proviso appended to this sub-rule makes an exception in case of
persons who are only co-sharers of joint ancestral properties in congested
localities (slum areas), and whose share is less than 66.72 sq. mtrs. (80 sq.
yds.) of land. Even if a person’s share in joint property is less than 66.72 sq.
mtrs., he would not be eligible to be a member of the housing society unless
the said property is situated in congested localities (slum areas).
Apart from the rules referred to above, the bye-laws of the society
also lay down certain conditions for the membership of the society. Bye-
law no.5 lays down the following qualification for being enrolled as a
member :
"5(i) No person shall be a member unless:-
(a) He/she is a displaced person provided that the
Managing Committee of the Society by a majority
decision at a duly convened meeting shall have the right
to relax this condition.
(ii) He/she is an employee or ex-employee of Ministry
of Rehabilitation including its subordinate offices in
Delhi/New Delhi or if posted outside wants to settle in
Delhi/New Delhi after retirement.
(iii) He/she is/has been an employee of the Ministry in
Delhi/New Delhi of which the Department of
Rehabilitation has been a part from time to time under
one Ministry of State etc;
(b) His written application for membership has been
approved by a majority the Managing of Committee;
(c) His age is more than 18 years, except in the case of
minor heir of a deceased member;
(d) He is not a member of any other house building
society, Group Housing Society;
(e) He or his wife (or her husband in case of a women)
or any of his/her dependent does not own a plot or a
dwelling house in Delhi;
(f) Directly or indirectly he does not deal in purchase
or sale of house or land for construction of houses either
himself or through any of his dependents;
(g) He has carried out the provisions of bye-laws 11.
(ii) Every person seeking membership of the society
shall sign a declaration to the effect that he or his wife
(she or her husband) or any of his/her dependents does
not own a dwelling house or plot in Delhi and that he/she
is not a member of any other cooperative house building
Society.
(iii) Every member on admission shall pay Rs.5/- as
admission fee which shall not be refunded in any case.
(iv) When a person’s application has been accepted by
the Committee and he has paid his admission fee and
share money, and his membership approved by the
General Body, he shall be deemed to have acquired all
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the rights and incurred all the obligations and liabilities
of member of the society, as laid down in the
Cooperative Societies Act, the Rules made thereunder
and these bye-laws.
(v) Application for admission as member and for
allotment of shares shall be made to the Secretary in the
form, prescribed by the society for the purpose. Every
such application shall be disposed off by the Managing
Committee who shall have power to grant admission or
to refuse it after recording reasons for such refusal,
provided, however, that any person whose application
has been refused by the Managing Committee may prefer
an appeal within 30 days to the Registrar, Cooperative
Societies. The decision of the Registrar shall be final.
(vi) The Society shall not admit member one month
prior to the date of his General Body."
Clause (e) of bye-law no.5(1) lays down that no person shall be
eligible to be a member, if he or his wife (or her husband in a case of a
woman) or any of his/her dependent owns a plot or a dwelling house in
Delhi. That apart, every person seeking membership of the society has to
sign a declaration to the effect that he or his wife (she or her husband) or any
of his/her dependent does not own a dwelling house or plot in Delhi and that
he/she is not a member of any other cooperative house building society.
The Department of Rehabilitation through a letter dated 26.5.1970
initially allotted 60 acres of land to the society subject to certain conditions.
This allotment was, however, cancelled on 7.5.1979. The society challenged
the cancellation order by filing Writ Petition no.654 of 1979, which was
allowed by a learned Single Judge of Delhi High Court on 1.9.1980 and the
cancellation order was quashed. The Delhi Development Authority
preferred LPA No.254 of 1980, which was dismissed by a Division Bench of
the High Court on 5.1.1981 and thereafter it preferred Special Leave Petition
(Civil) No.3762 of 1981 before this Court. During the pendency of the
petition, the parties entered into a compromise under which the allotment of
land was reduced to 45 acres with the further condition that the membership
of the society was to be restricted to persons who were members as on
1.9.1980 in accordance with the bye-laws of the society. The Delhi
Development Authority accordingly sought leave to withdraw the special
leave petition in view of the agreement that had been arrived at between the
parties. This Court accordingly passed an order on 6.5.1982, directing that
the order passed by the Delhi High Court will stand modified in the light of
the terms of the agreement between the parties which had been taken on
record and the special leave petition was allowed to be withdrawn. Under
this agreement, certain conditions were imposed for allotment of land and
the relevant part thereof are being reproduced below :
(i) xxxxx xxxxxx xxxxxx
(ii) No member of the Society who had himself or
herself or through his parents, husband/wife, children etc.
obtained any house or a plot from the Department of
Rehabilitation earlier shall again be allotted a plot in the
developed land.
(iii) No member of the society who already owns a plot
or a house in his own name or in the name of his wife or
dependents anywhere in the Union Territory of Delhi
shall be eligible for allotment of a plot in the developed
land.
(iv) The allotment of plots shall be restricted to the
bonafide members of the Ministry of Rehabilitation
Employees’ Cooperative House Building Society Ltd.
only as enlisted on 1.9.80, the date on which the writ
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petition of the society was allowed by the High Court of
Delhi and in accordance with the bye-laws of the society
as then prevailing. The verification with regard to the
individual membership shall be done by the Registrar,
Cooperative Societies who will issue a verification
certificate before the allotment is actually made to an
individual member.
(v) xxxxxx xxxxxxxx xxxxxxxxx
(vi) xxxxxxx xxxxxxxx xxxxxxxxx
(vii) The Society shall maintain proper registers of
membership and have its accounts audited from time to
time as prescribed by the Registrar of Cooperative
Societies. It shall submit to the Department of
Rehabilitation every three months a statement in regard
to the progress of development and allotment of plots to
the bonafide members of Society in accordance with its
bye-laws."
The condition imposed in the agreement provided that no member of
the society, who himself or herself or through his parents, husband/wife,
children, etc. had obtained any house or plot from the Department of
Rehabilitation earlier, shall again be allotted a plot in the developed land.
The other condition imposed was that no member of the society, who
already owns a plot or a house in his own name or in the name of his wife or
dependents anywhere in the Union Territory of Delhi, shall be eligible for
allotment of a plot in the developed land. In view of the agreement which
had been entered into between the parties and the order passed by this Court
on 6.5.1982 in Special Leave Petition (Civil) No.3762 of 1981, the
conditions mentioned therein are aboslutely binding upon the society as the
allotment of 45 acres of land to the society was made in pursuance to the
said agreement. The orders passed by this Court on 6.5.1982 had the effect
of modifying the order passed by the Delhi High Court by which the order of
cancellation of allotment of land had been quashed and consequently it is not
open to the society to act contrary to the terms of the agreement.
The individual cases may now be examined in the light of aforesaid
provisions of Rules, bye-laws of the society and the terms of the settlement.
Civil Appeal Nos of 2003 (@ SLP (C) Nos.5109-5110 of 2001)
O.P. Choudhry v. Rehabilitation Ministry Employees Cooperative House
Building Society & Ors.
O.P. Choudhry had been allotted a house bearing no.8-A/7, Old
Rajinder Nagar, Delhi, by the Ministry of Rehabilitation out of
compensation pool. This fact was not disclosed by him, when he acquired
membership of the society. Consequently, a notice was issued to him on
13.11.1991 and ultimately the dispute was referred for arbitration. The
Registrar, Cooperative Societies by his order dated 22.9.1993 held that he
was disqualified to be a member of the society. The Financial
Commissioner allowed the revision preferred by him but the said order has
been quashed by the High Court in the writ petition preferred by the society
and he has been held to be disqualified.
The appellant, O.P. Choudhry does not dispute the fact of allotment
of house bearing No.8-A/7, Old Rajinder Nagar, Delhi, but according to him
this allotment was against ancestral property claim and, therefore, it was
HUF property. It is noteworthy that the appellant did not furnish the
requisite affidavit to the society and concealed the fact of allotment of the
aforesaid property to him when he was enrolled as a member of the society
on 19.9.1973. He disposed of the said property on 26.10.1977 and
thereafter filed the requisite affidavit on 28.10.1977. In view of the specific
conditions contained in the agreement entered into by the society in Special
Leave Petition (Civil) No.3762 of 1981, which have been quoted above, any
member of the society who had obtained any house or a plot from the
Department of Rehabilitation earlier, cannot again be allotted a plot. That
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apart as on the date when he acquired membership of the society, he was
ineligible and was debarred from becoming a member thereof and further he
did not file a correct affidavit. The High Court was, therefore, justified in
allowing the writ petition filed by the society and quashing the order of the
Financial Commissioner. The appeal is accordingly dismissed.
Civil Appeal No of 2003 (@ SLP (C) No.7713 of 2001) Hari
Singh Mongia v. Rehabilitation Ministry Employees Cooperative House
Building Society & Ors.
The society had issued a show cause notice to the appellant, Hari
Singh Mongia, on 13.11.1991 to the effect that he was disqualified and was
ineligible for allotment, as property No.F-25, Kalkaji, New Delhi, was
allotted to his father Shri Santokh Singh Mongia against verified claim of
property left by him in Pakistan. The appellant admitted the fact that his
father Shri Santokh Singh had been allotted property No.F-25, Kalkaji, New
Delhi. He, however, submitted that the total area of the property was 200
sq. yds. and after the death of his father the property was inherited by his
mother and seven brothers and thus his share was only 25 sq. yds. The
Registrar in his award dated 4.10.1993 held that the appellant had incurred
disqualification but the said order was set aside in revision by the Financial
Commissioner on the ground that the property had been acquired by the
father of the appellant which was subsequently inherited by him. The High
Court allowed the writ petition preferred by the society and quashed the
order of the Financial Commissioner and held that the appellant was
disqualified.
The appellant does not dispute the fact that his father had been allotted
property No.F-25, Kalkaji, New Delhi, against verified claim of property left
by him in Pakistan. Clause 2 of the agreement dated 5.5.1982 entered into
between the society in Special Leave Petition (Civil) No.3762 of 1981
clearly provides that no member of the society, whose parents had obtained
any house or plot from the Department of Rehabilitation earlier, shall again
be allotted a plot. In view of this clause in the agreement, which is binding
on the society, the appellant is clearly ineligible for allotment of a plot. The
High Court rightly set aside the order passed by the Financial Commissioner
and upheld the order of the Registrar. The appeal is accordingly dismissed.
Civil Appeal No of 2003 (@ SLP (C) No.661 of 2002) Smt.
Kamlesh Kumari Bahl v. Rehabilitation Ministry Employees Cooperative
House Building Society & Ors.
The original member of the society was Shri Kewal Krishan Bahl and
after his death, the appellant Smt. Kamlesh Kumari Bahl, who is his widow,
was taken as a nominee member. The Registrar after inquiry found that
property No.A-431 and A-432, Kalkaji New Delhi, was allotted to Smt.
Vasheshran Devi, who was the mother of Shri Kewal Krishan Bahl by the
Ministry of Rehabilitation out of compensation pool on account of her being
a displaced person. In view of this allotment of property, Shri Kewal
Krishan Bahl was not eligible for being allotted a plot. In the affidavit
which was filed by the appellant on 19.9.1989, she did not disclose the fact
that the mother of her husband Shri Kewal Krishan Bahl had been allotted
any property by the Ministry of Rehabilitation. She filed another affidavit
on 28.3.1990, wherein she stated that neither she nor her husband nor her
husband’s parents had been allotted any plot. The Registrar held that the
appellant was disqualified but the revision preferred by the appellant was
allowed by the Financial Commissioner. The High Court allowed the writ
petition filed by the society, quashed the order of the Financial
Commissioner and restored that of the Registrar.
The material on record clearly showed that property No.A-431 and
A-432, Kalkaji, New Delhi, was allotted to Smt. Vasheshran Devi, who was
mother of Shri Kewal Krishan Bahl, by the Ministry of Rehabilitation out of
compensation pool on account of her being a displaced person. Copies of
the lease deed and the conveyance deed placed before the Registrar
established the said fact and the record of Municipal Council showed that
she was being assessed for property tax. In view of the aforesaid fact, Shri
Kewal Krishan Bahl could not have been allotted a plot as his mother had
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obtained a house from the Department of Rehabilitation earlier. The
appellant having come into picture after the death of Shri Kewal Krishan
Bahl as a nominee member cannot have better rights than her husband.
Since the husband of the appellant could not have been allotted a plot and
further as the appellant did not disclose correct facts in her affidavit dated
19.9.1989 and gave wrong facts in her subsequent affidavit dated 28.3.1990,
the High Court was perfectly justified in allowing the writ petition filed by
the society by which the order of the Financial Commissioner was quashed
and the order of the Registrar was restored. The appeal is accordingly
dismissed.
Civil Appeal No of 2003 (@ SLP (C) No.5439 of 2001) Bhag
Malhotra v. Rehabilitation Ministry Employees Cooperative House Building
Society & Ors.
The Registrar in his award dated 12.7.1995 held that the appellant had
incurred disqualification as property No.B-4/22, Safdarjung Enclave, New
Delhi was owned by her husband Shri Balraj Malhotra. The Financial
Commissioner has held that the husband of the appellant was holding the
property as Karta of Hindu Undivided Family and his share was only to the
extent of 40 sq. yds. The case of the appellant is that the property No.B-
4/22, Safdarjung Enclave, New Delhi, belongs to Hindu Undivided Family
and the same was allotted in lieu of a plot at Humayunpur village, which was
acquired by the Government and thus she had not incurred any
disqualification. The case of the society is that the appellant filed an
affidavit on 23.1.1973 stating that neither she nor her husband owned any
urban plot in the Union Territory of Delhi. She filed another affidavit on
12.9.1989 to the effect that neither she nor her husband nor any of her
dependent relation including married children, during the period of her
membership of the society, owned either in full or in part on leasehold or
freehold basis any plot of land or a house in Delhi/New Delhi. It is not in
dispute that a perpetual lease of plot No.B-4/22, Safdarjung Enclave, New
Delhi, was granted in favour of the husband of the appellant on 9.3.1966. It
is, therefore, clear that the appellant filed false affidavits. In view of bye-
law No.5(1)(e) of the society, a person cannot be a member of the society if
he or his wife or her husband (in case of a woman) or any of his/her
dependent owns a plot or a dwelling house in Delhi. The appellant was thus
not qualified to be a member of the society and was not eligible for
allotment of a plot. The High Court, therefore, rightly allowed the writ
petition filed by the society and quashed the order of the Financial
Commissioner. The appeal preferred by the appellant is accordingly
dismissed.
Civil Appeal No of 2003 (@ SLP (C) No.5242 of 2001)
Gurbachan Singh v. Rehabilitation Ministry Employees Cooperative House
Building Society & Ors.
The controversy raised in this appeal is about the initial membership
of the appellant in the society. The appellant claims that as an employee in
the Ministry of Rehabilitation, he deposited Rs.1,605/- on 7.6.1966 with one
Lachman Dass, a member of the society, who received the documents and
the amount on behalf of the society. An Administrator had been appointed
on 29.6.1976, who made a noting that the file of appellant was blank. In
pursuance of the directions issued by the High Court in a writ petition filed
by the appellant, the matter was referred for arbitration. The Deputy
Registrar (Arbitration), after examining Lachman Dass as well as Shri J.B.
Mittal, the then Secretary of the Society, and after examining other material
produced by the parties, held that the appellant had not submitted any
application with necessary affidavit for enrolment as member of the society
and consequently rejected his claim vide order dated 2.2.1995. The appeal
preferred by the appellant was allowed by the Delhi Cooperative Tribunal on
25.5.1995 and it was directed that the appellant be treated as a valid member
of the society. Against the said order, the society preferred a writ petition in
the High Court, which has been allowed and the order of the Cooperative
Tribunal has been quashed.
The Registrar, apart from other evidence, had also placed reliance on
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the circumstance that the appellant sent a letter to the society on 21.6.1983
through his colleague Om Prakash Aggarwal stating as under :
"I deposited Rs.1,600/- only to the Society as advance on
June 7, 1966 by cheque no.693575 dated 20.5.1966. No plot
has been allotted to me. It is requested that the said money may
please be adjusted in the account of Om Prakash Aggarwal. I
attach hereby the original receipt."
The society immediately refunded Rs.1600/- through cheque dated
28.6.1983 and a letter was sent to the appellant informing him that it will not
be possible for the society to adjust the said amount of Rs.1,600/- in the
account of Shri Om Prakash Aggarwal. The writing of the letter by the
appellant is not disputed by him. The Registrar has recorded a clear finding
that the appellant did not submit any application form and the affidavit as
alleged by him and because he did not submit a formal application for
enrolment as a member of the society and the necessary affidavit, the
question of his having been admitted as a member of the society did not
arise. He has further held that the mere deposit of Rs.1,605/- with the
society did not confer upon the appellant the right of membership. The
Cooperative Tribunal did not at all advert to the aforesaid finding of the
Registrar but proceeded on the basis that the only controversy was about the
authenticity or otherwise of the signature of Lachman Dass on the receipt
dated 7.6.1966. The High Court has held that the basic issue was whether
the appellant had moved a formal application for enrolment as a member of
the society and had submitted the necessary affidavit and as the Tribunal had
not at all considered the said aspect of the case and had not reversed the
finding of the Registrar on this point, the order passed by it was liable to be
set aside. The High Court has also taken notice of an additional feature of
the case which showed that the appellant was not himself pursuing the
matter, but it was a proxy litigation. The appellant did not file his own
affidavit in reply to the writ petition filed by the society. On the contrary,
the affidavit has been filed by one Shri Rajan Aggarwal son of Shri Om
Prakash Aggarwal in whose favour the appellant wanted adjustment of his
amount which was deposited by him. The affidavit has been filed on the
basis of a power of attorney. It was on these findings that the High Court
allowed the writ petition filed by the society and set aside the order passed
by the Tribunal.
Having considered the submission made by learned counsel for the
parties and the material on record, we are of the opinion that the High Court
rightly set aside the order passed by the Cooperative Tribunal as it had not
adverted to the main issue, namely, whether the appellant had submitted any
application form and necessary affidavit for enrolment as member of the
society. The mere fact that some money was deposited by the appellant with
Lachman Dass on 7.6.1966 would not entitle him to claim membership of
the society. That apart, the society had refunded the amount through cheque
dated 28.6.1983 when the appellant sent a letter that the money be adjusted
in the account of Shri Om Prakash Aggarwal. The High Court has rightly
taken the view that the appellant is not himself pursuing the matter and in
fact it was a proxy litigation on behalf of Shri Om Prakash Aggarwal. We,
therefore, do not find any ground to interfere with the order passed by the
High Court. The appeal is accordingly dismissed.
Civil Appeal No of 2003 (@ SLP (C) No.7599 of 2002 S.L.
Anand v. K.N. Kapoor & Ors., Civil Appeal No of 2003 (@
SLP (C) No.13674 of 2001 S.L. Anand v. Rehabilitation Ministry
Employees Cooperative House Building Society & Ors. & Civil Appeal
No.6979 of 2001 K.N. Kapoor v. Rehabilitation Ministry Employees
Cooperative House Building Society & Ors.
The appellant Shri SL Anand was not made a party in the writ petition
which was filed by the contesting respondent Shri KN Kapoor. However, in
the main judgment of the High Court dated 7.12.2001 by which the writ
petitions were decided the seniority position was inter-changed and Sh. KN
Kapoor was shown at serial No.33 while appellant SL Anand was shown at
serial No.34. The appellant preferred a review petition which was heard and
finally disposed of by the High Court by the judgment and order dated
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7.12.2001. By the said judgment a number of other review petitions were
also disposed of. The operative part of the order passed on the review
petition of the appellant reads as under:
"In any case we are of the view that review application
on the above ground is not permissible. We are also
informed that Special Leave Petition has also been filed
by the applicant before Supreme Court by which he is
seeking quashing of the judgment on merits.
Accordingly except taking on record the fact, as per the
record of the society, that the date on which the applicant
KN Kapoor submitted his application seeking
membership of the society is 10.12.1970 and not
26..3.1971 and in case 10.12.1970 is taken as the date of
his application his name will come up at Sr. No.33
instead of Sr. No.34, no further orders are required to be
passed by us on these applications, which stand disposed
of."
The appellant Shri S.L. Anand submitted an application for becoming
a member of the society on 26.6.1970, while Shri KN Kapoor submitted his
application on 10.12.1970. The application given by the appellant was
approved by the Managing Committee of the society on 2.2.1971 and he was
admitted as a member of the society and was given membership No.630.
Shri K.N. Kapoor was enrolled as member on 26.3.1971 and thereafter he
deposited the share money and was given membership No.657. The
Managing Committee of the society, on a direction of the Registrar,
reviewed all memberships and passed a resolution on 22.3.1974 approving
the appellant amongst others as member of the society. The administrator of
the society also, after consideration of the material on record, approved the
name of the appellant on 9.8.1976. In view of these facts we are of the
opinion that the High Court erred in altering the seniority of the appellant
and placing his name at Sr. No.34 instead of Sr. No.33. That apart Shri KN
Kapoor had not impleaded the appellant as a party to the writ petition and in
his absence no order adverse to his interest could have been passed. The
appeal preferred by the appellant is therefore allowed and the order passed
by the High Court is modified to the extent that the appellant shall be placed
at Sr. No.33 and Sh. KN Kapoor shall be placed at Sr. No.34 in the seniority
list. So far as the appeal preferred by Sh. KN Kapoor is concerned we do
not find any ground to take a view different from what has been taken by the
High Court and the appeal preferred by him is dismissed.
Civil Appeal Nos of 2003 (@ SLP (C) No.7602-04 of 2002)
Suresh Chand & Ors. v. Rehabilitation Ministry Employees Cooperative
House Building Society & Ors.
The grievance of the appellants Suresh Chand and others is that their
names were not included in the draw of lots held on 14.12.1988 and
23.6.1989 and no plot has been allotted to them. The High Court repelled
the claim of the appellants and further directed that the society was not
required to retain their names in the seniority list and further it was at liberty
to take appropriate steps for removal of their names from the list of
members. The writ petition filed by the appellants was dismissed.
The appellants Suresh Chand and Ramesh Chand are sons of Puran
Chand. Puran Chand died on 1.1.1985 and thereafter his widow Smt.
Karunawati became a member and her membership was approved by the
Registrar. Smt. Karunawati also died on 22.1.1995. The appellants only
allege that they sent a letter on 14.2.1995 to the society to do the needful.
There was no material on record to show that the appellants took any
effective steps for transfer of the membership in their names. As the
appellants have not been formally inducted as members of the society, there
was no occasion for including their names in the draw of lots. We do not,
therefore, find any error in the judgment of the High Court. The appeals are
accordingly dismissed.
Civil Appeal No of 2003 (@ SLP (C) No.17365 of 2002) Ram
Niwas Gupta v. Rehabilitation Ministry Employees Cooperative House
Building Society & Ors., Civil Appeal No of 2003 (@ SLP (C)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10
No.17366 of 2002) K.L. Rathi & Anr. v. Rehabilitation Ministry
Employees Cooperative House Building Society & Ors. and Civil Appeal
No of 2003 (@ SLP (C) No.17368 of 2002) Uma Shankar
Saxena (d) by LR. v. Rehabilitation Ministry Employees Cooperative House
Building Society & Ors.
The controversy raised in all the three appeals is identical and, therefore,
they are being dealt with together. For convenience sake, facts of only one
appeal are being mentioned. The appellant Ram Niwas Gupta was enrolled
as a member of society on 14.2.1970 and his membership was approved in
the resolution passed on 22.3.1974. The appellant and 35 others were given
a notice of expulsion on 23.5.1974 which was challenged. The arbitrator
gave an award on 14.7.1982 holding that expulsion of all the 36 members
including the appellant was invalid. The appeal preferred by the society
was dismissed by the Delhi Co-operative Tribunal on 20.6.1984 and the writ
petition preferred against the said order was also dismissed by the High
Court on 8.3.1985. During this period fresh notices were given by the
society to the appellant and others alleging that they had committed default
in payment of the amount. The General Body thereafter passed a resolution
expelling the appellant and three others which was approved by the
Registrar by an order dated 9.8.1985. The appellant preferred an appeal
under Section 76 of the Delhi Cooperative Societies Act before the
Lieutenant Governor which was allowed on 7.8.1986 and the resolution
passed by the society for expulsion of the appellant and three others was set
aside. Feeling aggrieved by the decision of the Lieutenant-Governor the
society preferred Writ Petitions No.1129 to 1132 of 1987 which were
dismissed by the High Court on 11.5.1990. The Special Leave Petitions
filed by the society were dismissed by this Court on 20.12.1990. Thereafter,
the Managing Committee of the society passed a resolution on 3.6.1991
resolving that the four members including the appellant be asked to submit
the requisite documents and make payment of their dues as paid by other
members on account of the cost of land, development charges and interest
etc. The amount was deposited by the appellant on 10.6.1991. Thereafter
the Registrar issued a letter dated 31.8.1992 clearing the membership of the
appellant. The grievance of the appellant is that the expulsion orders passed
against the appellant having been set aside, he is entitled to restoration of his
original seniority. The High Court fixed the seniority of the appellant with
effect from a subsequent date i.e. 14.12.1980 which is the date on which the
society passed a general residuary resolution. We find force in the
contention of the appellant that the expulsion notice and the resolutions
passed by the society against him having been set aside by the competent
authority and the challenge made to it by the society by filing a writ petition
in the High Court and then SLP in this Court having been rejected, there is
no justification for not restoring the original seniority to the appellant and
assigning seniority from a subsequent date i.e. 14.12.1980. Once the
expulsion order was set aside it has no existence in the eyes of law and
cannot be taken notice of for depriving him of his original seniority. The
Managing Committee of the society had also passed a resolution on 3.6.1991
to the affect that the four members including the appellant may be asked to
submit requisite documents and make payments of their dues as paid by
other members on account of cost of land, development charges and interest
etc. In this resolution nothing was said about disturbing the seniority of the
appellant or assigning him seniority from a later date. The appellant having
deposited the entire amount demanded by the society, is entitled to
restoration of his original seniority. All the aforesaid appeals are
accordingly allowed and the judgment of the High Court is modified to the
extent that the appellants’ original seniority shall be restored.