Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(SC) 242

Supreme Court of India
THE HONOURABLE DR. JUSTICE ARIJIT PASAYAT & THE HONOURABLE MR. JUSTICE ASOK KUMAR GANGULY
Hindustan Coop. Housing Building Society Ltd.
Versus
Registrar, Co-operative Societies & Another
Civil Appeal No.957 of 2009 (Arising out of SLP (C) No.9866 of 2007)
Decided On : 12-02-2009

Advocates Appeared: For the Appellant:K.T.S. Tulsi, Sr. Advocate, R.K. Gupta, R.C. Kaushik, Raj Kamal, Maheen Pradhan and T.S. Duggal, Advocates. For the Respondents:A. Sharan, ASG, B.A. Khan, Rakesh Munjal and Rajiv Dutta, Sr. Advocates, Syed Shahid Hussain Rizvi, Dr. Saif Mehmood, H.P. Singh, Hina Rizvi, Shashi Kiran, Asha G. Nair, Anil Katiyar and D.S. Mehra, Advocates.

IMPORTANT POINT
A deeming provision like Rule 25(2) of the Delhi Cooperative Societies Rule, 1973 should be properly examined for its effect on adjudication.

Headnote:Delhi Cooperative Societies Rule, 1973 – Rule 25(2) – It is a deeming provision – It speaks of a deemed disqualification – Its effect has not been examined by the High Court – Matter remitted to the High Court for fresh hearing of the writ petition. (Para 8, 15)
       1881 (17) Ch.D 746; 1884 (9) AC 448; AIR 1953 SC 333; (1986) 1 SCC 465; (1996) 4 SCC 76; 1951 (2) All ER 587 (HL); 1951 (2) All ER 473; 1970 (44) Aust LJ 257; 1891 (60) LJ QB 379; 1960 (23) DLR (2d) 32; 1962 (3) All ER 641 – Referred
       Facts of the case:
       On 5.9.1962 Anoop Singh who as a member wrote to appellant-Society asking for refund of monies (Rs.3110/- towards membership and Rs.15,000/- each for plot in appellants colony).
       On 9.5.1972 late Anoop Singh filed application for transfer of his membership in favor of his daughter, the respondent no.2.
       On 18.11.1973, by a letter the appellant-society informed Anoop Singh that the Managing Committee by resolution dated 05.09.1973 allowed the transfer and asked for share certificate and other documents to enable transfer.
       On 12.10.1978, appellant-society requested Anoop Singh to file an affidavit which he did not do.
       Resultantly the transfer was not made and on 1.02.1982 Anoop Singh tendered his resignation.
       On 14.02.1992 respondent no.2 filed WP(C) without challenging the orders of the Administrator dated 26.03.1979, 29.05.1979, 11.07.1979 and 24.11.1979, seeking writ of Mandamus asking appellant and respondent no.1 for allotment of plot or in alternative to refund money paid by respondent no.2.
       On 16.02.2006 the High Court allowed writ petition ex-parte proceedings qua appellant-society and issued directions to respondent no.1 to recommend the case to appellant-society for allotment of plot in category ‘C of 125 sq. yards.
       On 22.05.2006 appellant-society came to know about the above order vide letter dated 22.05.2006 issued by respondent no.1.
       On 01.07.2006 appellant society filed a Review Petition which was dismissed.
       Finding of the Court:
       Matter needs to be remitted to High Court for fresh hearing.
       Result:
       Appeal allowed partly.

Judgment :

Dr. Arijit Pasayat, J.

1.1. Leave granted.

2.2. Challenge in this appeal is to the judgment of Delhi High Court in Writ Petition No.686/1992 and Review Petition No.268/2006 in the aforesaid writ petition.

3.3. Background facts in a nutshell are as follows:

On 5.9.1962 Anoop Singh who as a member wrote to appellant-Society asking for refund of monies (Rs.3110/- towards membership and Rs.15,000/- each for plot in appellants colony). The reason stated was that as the membership process with appellant was getting delayed and he has purchased a plot in Green Park and as per Govt. Policy there are no chances of getting more than one plot in Delhi.

On 9.5.1972 late Anoop Singh filed application for transfer of his membership in favor of his daughter, the respondent no.2.

On 18.11.1973, by a letter the appellant-society informed Anoop Singh that the Managing Committee by resolution dated 05.09.1973 allowed the transfer and asked for share certificate and other documents to enable transfer.

On 12.10.1978, appellant-society requested Anoop Singh to file an affidavit which was questioned by respondent no.2 by letter dated 27.10.1978.

On 26.3.1979 Anoop Singh did not file the requisite affidavit and Administrator of appellant-society by letter informed that the transfer could not be confirmed unless affidavit is filed.

On 14.4.1979 Anoop Singh replied stating that it is not possible to file the affidavit as he does not know full or part of lease hold or freehold of the property.

On 29.5.1979 Administrator informed Anoop Singh of his inability to transfer the membership as the affidavit was not filed and asked to withdraw the deposit from society to which Anoop Singh requested for reconsideration vide letter dated 06.06.1979.

On 11.7.1979 appellants administration made it clear that no allotment could be made in favour of respondent no.2 to which Anoop Singh again requested for reconsideration vide letter dated 11.11.1979.

On 22.3.1980 appellant-administration informed Anoop Singh that even though clause 5

(2) of Lease Deed provides for transfer without affidavit - allotment of plot could not be possible unless original member establishes his own eligibility for allotment for plot. However, opportunity of personal hearing was granted to Anoop Singh.

On 24.11.1980, Administrator of appellant-society removed the name of Anoop Singh categorically stating that it could not be transferred in favor of respondent no.2.

On 22.1.1982, Secretary of the society also by its letter informed Anoop Singh that transfer could only happen after submission of indemnity bonds and affidavits so it is suggested that respondent no.2 be made fresh member of society w.e.f. date of transfer.

On 1.02.1982 Anoop Singh tendered his resignation.

On 14.02.1992 respondent no.2 filed WP(C) being 686/92 without challenging the orders of the Administrator dated 26.03.1979, 29.05.1979, 11.07.1979 and 24.11.1979, seeking writ of Mandamus asking appellant and respondent no.1 for allotment of plot or in alternative to refund money paid by respondent no.2.

On 30.10.1995 Rule was issued. On 19.09.2005 ex-parte proceedings qua appellant-society were initiated in High Court.

On 16.02.2006 the High Court allowed writ petition and issued directions to respondent no.1 to recommend the case to appellant-society for allotment of plot in category ‘C of 125 sq. yards.

On 22.05.2006 appellant-society came to know about the above order vide letter dated

t. 22.05.2006 issued by respondent no.1.

On 01.07.2006 appellant society then filed a Review Petition being 268 of 2006 and on 1.9.2006 the High Court issued notice. On 19.1.2007 the High Court dismissed review petition.

The High Court by the order in writ petition held that the transfer in favour of Jasjit Kaur has been accepted by the Society and therefore she was entitled to allotment of the plot. It was held that the Registrar, Cooperative Society had no authority in law to sit over the affidavit and not to recommend the case f

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2009 Supreme(SC) 242

IMPORTANT POINTA deeming provision like Rule 25(2) of the Delhi Cooperative Societies Rule, 1973 should be properly examined for its effect on adjudication.

IMPORTANT POINT
A deeming provision like Rule 25(2) of the Delhi Cooperative Societies Rule, 1973 should be properly examined for its effect on adjudication.