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2016 Supreme(Del) 1717
IN THE HIGH COURT OF DELHI AT NEW DELHI
S. RAVINDRA BHAT, DEEPA SHARMA, JJ.
H.K. MADHIA - Petitioner
Versus
THE FINANCIAL COMMISSIONER & ORS. - Respondents
W.P.(C) 363/2015 & CM No. 594/2015
Decided on : 08-04-2016
Ms. Kajal Chandra and Ms. Swati Sinha and Ms. Prerna Chopra, Advocates
Mr. Naushad Ahmed Khan, ASC (Civil), GNCTD alongwith Mr.Nigam, Advocate for R-1.
Mr. Sunil Dalal, Advocate for R-2.
Mr. Dhruv Sharma, Advocate for R-3.
Mr. Siddharth Dutta, Adv. for R-4.
Headnote:
Criminal Procedure Code, 1973 - Section 195, 340 - Penal Code, 1860 - Section 193, 196 - Membership of Housing Society - Cessation - False plea - Application of 340 of Cr.PC - Membership of Cooperative Housing Society - Registrar of Cooperative Societies had declared cessation of his membership of the society from the date of enrollment - Vacation of flat is ordered - Petitioner's claim as a fresh member of the society and not made a member against any vacancy - All dues have been paid - Petitioner was enrolled and the expulsion of S.G. Vaswani was confirmed by Registrar - Petitioner was aware of condition regarding clearance of any dues had not been passed - False plea has been taken in the writ petition - Plea that a vacancy existed to which he was admitted as a member is false - An enquiry is ordered to be made into the offences referred in Section 195 (1) (b) of Cr.P.C. - Petitioner has committed the offences under Section 193and Section 196 of IPC - Registrar General of this Court is directed to file a complaint.
Delhi Cooperative Societies Rules, 1973 - Rule 36 - Delhi Cooperative Societies Rules, 2007 - Rule 99 - Allotment of plot - Transfer - Injunction - DDA is the lessor of the land - Society has no right to transfer any part of the common area in terms of drawings and approved plans - Land was not a freehold property of the society - Held, there is no fault in the concurrent findings of the Registrar - Writ petition is dismissed.
MS. JUSTICE DEEPA SHARMA (JUDGMENT)
1. The petitioner claims to be a valid member of the second respondent (Subhash Cooperative Housing Society, “the society”) impugns an order dated 17.02.2012 of the Registrar of Cooperative Societies (RCS) and order dated 23.12.2014 of Financial Commissioner (FC). These had declared cessation of his membership of the society from the date of enrolment, i.e., 03.03.1996 and he was required to vacate flat No.58 as well as a plot admeasuring 300-400 square feet on the rear side of the flat, and hand it over to the Society. He also seeks a declaration that the order of RCS dated 27.03.1996 whereby expulsion of Mr. S.G. Vaswani was confirmed should be declared valid order and made final and absolute.
2. The petitioner’s claim is that he was a fresh member of the society and was not made a member against any vacancy. And, he paid all the dues in terms of the demands raised from time to time and that the total amount paid by him was Rs.8,50,000/-. He also says that his name has all along been shown in the list of members issued from time to time by the Society. It is further contended that the society’s allegation against him that at the time when he became member of the Society, he owned a property in Paschim Vihar is incorrect because the authorities failed to appreciate that he never owned any DDA flat or plot in any other cooperative society. An LIG flat measuring less than 71 square feet, secured on power of attorney basis was owned by his wife at that time. Therefore, his affidavit to the effect that he owned no property at that time was true. One Mr S.G.Vaswani another member of the society had been earlier expelled. That expulsion had been challenged. The order (dated 27.03.1996) was held to be bad in law. The petitioner contends that even while holding the expulsion illegal, the FC had issued the directions to the LR’s of the said deceased S.G. Vaswani to deposit the entire amounts due within 35 days. As they failed to comply with those directions (and did not deposit the dues), the expulsion order which had been approved by the RCS on vide 27.03.1996 automatically stood. S.G. Vaswani, therefore, stood expelled from the Society. This led to a vacancy in the membership of the Society.
3. A plot admeasuring 300-400 square feet behind flat No.58 was allotted to the petitioner against the payment of an amount of Rs.75,000/-. Although he had already vacated the plot, yet the money paid by him towards that plot is not returned to him by the Society. This was, complains the petitioner, totally overlooked by the lower authorities. The proceedings conducted by the Registrar under Section 41 of the Delhi Cooperative Societies Act, 2003 read with Rule 19 and 25 of Delhi Cooperative Societies Rules, 2007 and the Rules as amended on 12.01.2007 are further challenged on the ground that his case is governed by the old Delhi Cooperative Societies Act of 1972 (1972 Act) and the Delhi Cooperative Societies Rules of 1973 (1973 Rules) since he was granted membership before the new Act came into force. Reliance is placed on Section 141 of new, Delhi Cooperative Societies Act, 2003 which protects the acts done under the previous Act and clause (b) clearly stipulate so:-
“141. Repeal and Savings :
On the day on which the Delhi Cooperative Societies Act, 2003 comes into force, the Delhi Cooperative 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) XXX XXX
(b) any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed; or”
4. His membership into the Society was in terms of provision of DCS Act, 1972 and hence action taken by the Registrar under the new Act is void-ab-initio and liable to be set aside.
5. The respondents argue that on 03.03.1996 when the petitioner was enrolled, there was no vacancy of a member in the Society and that he had been enrolled in a f
