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2010 (8) Supreme 80
SUPREME COURT OF INDIA
Dr. Mukundakam Sharma and Anil R. Dave, JJ.
Ishwar Nagar Co-Op. Housing Building Society — Appellant
versus
Parma Nand Sharma and Ors — Respondents
Civil Appeal No. 9671 of 2010
Decided on : 15-11-2010
Facts of the Case :
Present Appeal has been filed against judgment and order of High Court wherein High Court allowed writ petition filed by respondent-1 and whereby resolution and order passed by appellant and order of the Registrar, Cooperative Societies and order of Deputy Registrar whereby name of respondent-1 had been removed from the list of members of the appellant- society were quashed and set aside.
Findings of the Court :
Evidence on record showed that property was purchased in name of HUF and not by respondent-1 in his personal capacity.Sub-rule (1)(c)(i) of the rule 25 provided an exception in case of persons who are only co-sharers in the joint family property, in that disqualification of membership as laid down in sub-rule (l)(c)(i) shall not be applicable in case of co-sharers of property whose share is less than 66.72 sq. m. (80 yds) of land. Instantly , said property was admeasuring 1080 yds and there were 3 co-sharers of the property, i.e. respondent-1 and his two children, (after the death of wife) and share of respondent-1 would be more than the prescribed limit- In this regard, said exception was not applicable to respondent-1’s case.The appellant society was, under an obligation not to allot a residential plot to a person, who was owning a property in the city of Delhi. Therefore, as per terms of allotment of the land to the appellant it was obligatory for society not to allot plots of land to such persons who own any residential property either in their own name or in the name of their family member. When the Hindu Undivided Family of respondent consisted only of his own family members, namely, his wife, son and the daughter and therefore obviously ownership of said property by Hindu Undivided Family of respondent was ownership of property by family members and consequently same clearly fell within the prohibition and bar of allotment as contained in clause No. 5 (a) of the lease deed. Apart from that respondent for purpose of being member of appellant-society could not claim said property used purely for commercial purpose when he himself claimed said property being used for residential purpose also. Said information about nature and status of his property in Kailash Colony were furnished by the respondent under his own declaration and by certifying that said particulars filled in the form are true and correct to the best of his knowledge. This information was held relevant and material to come to conclusion that said property in Kailash Colony was also used as a residential property .Contention of respondent no. 1 that it was exclusively a commercial property was held unacceptable. Appeal was allowed
Result : Appeal allowed
JUDGMENT
Dr. Mukundakam Sharma, J. —
1. Leave granted.
2. This Appeal is directed against the judgment and order dated 28/03/2008 in W.P. No. 474/1982 of the High Court of Delhi wherein the High Court allowed the writ petition filed by the respondent-1 and whereby resolution and order dated 14th January, 1978 passed by the appellant and the order of the Registrar, Cooperative Societies dated 17th May, 1978 and the order of the Deputy Registrar dated 5th November, 1981 whereby the name of the respondent-1 had been removed from the list of members of the appellant- society were quashed and set aside.
3. The respondent-1, Dr. Parmanand Sharma was enrolled as a member of the appellant society vide membership No. 35 on 11th March 1961. In 1968, he purchased a property bearing No. A-19/A, Kailash Colony, New Delhi in the name of his Hindu Undivided Family consisting of respondent-1, his wife and two minor children in 1968 and a structure was constructed thereon in 1969. According to the appellant-society, this construction is a residence-cum- nursing home, whereas respondent-1 claims it to be only a nursing home, to which question we will refer later. In this chain of events, the membership of the respondent-1 was terminated from the appellant society on the ground that the respondent-1 owned another property, i.e., 19/A, Kailash Colony, in Delhi, since as per rule 25 (1)(c) of the Delhi Cooperative Societies Rules, 1973 (hereinafter referred to as “the Rules”), upon owning another property, the appellant was not entitled to be member of a Cooperative Housing Society. The respondent-1 was also expelled on 14th January 1978 from the society under section 36(1) of the Delhi Cooperative Societies Act, 1972 (hereinafter referred to as “the Act”) for being a persistent defaulter, since he had not paid the dues demanded by the society. The action of the society expelling the respondent-1 was approved by the Registrar, Cooperative Societies on 17th May 1978. On 26th February 1980, an application was filed by respondent-1 under Section 60 of the Act for reference of dispute to arbitration. The reference was dismissed on 5th November, 1980. Being aggrieved, the respondent filed a writ petition before the High Court, wherein the High Court by the impugned judgment and order dated 28/03/2008 held that 19/A, Kailash Colony, Delhi was being used for running a nursing home, i.e., for a commercial purpose and therefore, that would not constitute a violation of Rule 25 of the Rules. By the said order, the HC set aside the expulsion orders.
4. The present appeal is directed against the above impugned judgment and order of the High Court by way of Special Leave Petition on which we heard the counsel appearing for the parties at length. The learned counsel for the appellant contended that on the ground floor of the said property, the respondent-1 is running a nursing home and that he is residing on the first floor. In that view, the appellant contended that the property was being used for residential purposes. Counsel for the appellant also submitted that the respondent-1 in his various correspondences, pleadings and affidavits has shown the property as his address which is conclusive proof that he is residing in the said property.
Moreover, it was also contended that respondent-1 had been unable to disclose where he was alternatively residing and no documents had been furnished to show that the said property was being used exclusively and solely for commercial purpose. In this regard, it was submitted that the user of the said property being a resident therein, this not only violates Rule 25 of the Rules, but also is contrary to the bye laws of the society and the terms of perpetual lease agreement entered between Govt. of India and the appellant society, in pursuance of which the respondent-1 would be entitled as being member of the appellant-society. On the other hand, the learned counsel for the respondent-1 refuted the claims made by the appella
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