Full Text
Date of Decision: 28.01.2022
JASDEEP SINGH NANRA ..... Petitioner
Through: Mr. Siddhant Nath, Advocate.
Through: Ms. Shobhana Takiar, Advocate for respondent No.1/ RCS.
Mr. Sandeep Kumar, Advocate for respondent No.2.
HON'BLE MR. JUSTICE JASMEET SINGH VIPIN SANGHI, J. (ORAL)
JUDGMENT
1. The present case is an example of how the respondent No.2 society, i.e. Telang Cooperative Group Housing Society Ltd. has miserably defeated the cooperative movement in Delhi. The Delhi Cooperative Societies Act, 1972 (the 1972 Act) was enacted and brought into force to, inter alia, enable the people to pool in their resources – to attain their defined and stated objectives collectively, in keeping with the spirit of cooperation. The revised statement on the principles of cooperation, adopted by the International Cooperative Alliance in 1995, defines a Cooperative to mean 2022:DHC:1063-DB “an autonomous association of persons united voluntarily to meet their common economic, social and cultural needs and aspirations through a jointly owned and democratically-controlled enterprise.”
2. Insofar as Cooperative Housing Societies are concerned, they were conceived to foster the principles of cooperation, so that people with limited resources can pool their savings to fulfil their life-time dream of having their own roof on their heads, which they could call their home. With that objective, the law facilitated the formation of housing cooperative societies, and the State – through its instrumentality, namely, the Delhi Development Authority (DDA), made allotment of plots to housing cooperative societies at reasonable rates under the DDA (Nazul Land) Rules, 1981, so that flats could be constructed and allotted to the members who enrol as members of the society.
3. So as to curb the practice of hoarding and speculation, and to ensure that the benefits of concessional allotment of land by the State are availed of by the genuinely needy people, the Delhi Cooperative Societies Act, 1972 (particularly Section 20) and the Rules framed thereunder viz Delhi Cooperative Societies Rules, 1973 (the 1973 Rules), (particularly Rule 25) laid down several eligibility conditions, and disqualifications for becoming a member of a housing cooperative society. For example, one of them was that the prospective member should not own any other residential property in Delhi.
4. Raising of cooperative flats has always been a slow process. Quite often, the said process gets mired in controversies due to disputes within the management of the cooperative societies; or with the builder/ contractors, or; with the members. The raising of construction also gets delayed on account of some of the members not contributing their due share, and also due to escalation in costs. This has, invariably, resulted in the process of construction and eventual allotment of the flats to the members getting delayed for years, and sometime for decades. Often, despite the construction of flats being completed, their allotment and handing over to the members gets delayed due to inter se disputes/ claims between the members and/ or the cooperative society. In the meantime, life does not stop and some members pass away; some persons – who got validly enrolled as members, receive some or the other residential property in Delhi by inheritance; some may move on to other parts of the country, or even abroad – as their destinies take them.
5. The acquisition of other property by inheritance, by the duly enrolled members, was sought to be used by several cooperative societies as a ground to cease the membership of such members. The issue arose before the Court with regard to their eligibility to continue as members. This Court in O.P. Sethi Vs. The Lt. Governor and Others, 1991 SCC OnLine Del 423, rejected the argument that the said members would stand disqualified to remain or continue as members due to subsequent acquisition of ownership in another property in Delhi. The Court held as follows in this decision:- “We are of the considered view that Rule 25(1)(c) is attracted in those cases where the properties are held benami. Having come to this conclusion, there seems to be little difficulty in holding that the said rule cannot apply in the cases where properties are acquired by transmission/devolution. We feel that Rules 25 and 35 of the said Rules have to be read in different contexts. The former takes care of the cases of acquisition of membership or its transfer and the latter the cases of transmission etc. The view, which we have taken, we feel, will give a harmonious construction to the provisions of the said Rules and bye-laws, referred to above. A contrary view, in our opinion, will not only make bye-law 9 redundant but may also lead to unreasonable and unamolous results. For example, member on being granted membership of a housing co-operative society constructs a house on the plot subleased in his favour. He registers Jus only heir as his nominee. During his life time the said heir also himself/herself acquires a residential house of a plot of land for construction of residential house. It will be extremely unreasonable if on the death of the member, the said heir is told that he/she having incurred disqualification as per rule 25, membership and property of the deceased could not be transferred in his/her favour. More so when the Act, the Rules and the bye-laws are silent on the question as to what will happen to the property after the death of the member in such a situation. We feel the latter part of bye-law 9 is intended to take care of such a situation.” (Emphasis supplied)
6. This Court in S.K. Tandon Vs The Registrar of Co-operative Societies, 1996 SCC Online Del 485, followed the same line of reasoning as had been laid down in O.P. Sethi (supra). The Court observed as follows: “23. Mrs. Ahlawat when questioned about inheritence fairly conceded that if the father of the petitioner had paid the price before his death then by inheritence the petitioner would acquire the property inspite of having been allotted earlier a plot from another Society. Her grievance that late Mr. Tandon only paid price of land and not of the superstructure hence even by inheritence no property vested in the petitioner. This argument cut no ice because Society having received full payment of land from late Shri K.L. Tandon could not say that no right in the property vested or that the right will vest in the property only when super structure is raised. So far as the land on which the superstructure has been raised the price of the same stood paid by its member late Shri K.L. Tandon. Hence in law late Sh. K.L. Tandon acquired a right in the immoveable property. Therefore, by inheritence the petitioner became entitled to acquire not only the land but subsequent benefit of the flat. The mere fact that balance instalments were yet to be paid cannot disentitle the petitioner from inheritence. In fact by paying for the price of land late Mr. K.L. Tandon acquired vested right which on his death passed on to his legal heir which in this case is the petitioner. He acquired the right by inheritence. Thus in view of the provisions of the Act, rules and bye-laws as well as amended rules as published on 11th July, 1995 read with the interpretation given by this Court in the case of O.P. Sethi it clearly emerges that the petitioner is entitled to acquire the flat i.e. the property of his father in this Society.
24. Mrs. Ahlawat's contention that the sanction under rule 28 only enabled the petitioner to become a member but does not allow him to acquire the flat appears to be without force. Once the Registrar accorded the sanction thereby permitting him dual membership on account of the inheritence then in such a case the bar created under rule 25 would not apply. It does not lie in the mouth of the Registrar to contend that permission under rule 28 only made petitioner member of the Society but would not allow him the consequential benefits. Such an argument on the face of it is erroneous. Mr. J.M. Sabharwal counsel for the petitioner rightly contended that having accorded the sanction and the Society having acted upon the same, the doctrine of promissory and equitable estoppel would apply in such a case.” (Emphasis supplied)
7. The above interpretation of Rule 25 of the Delhi Cooperative Societies Rules, 1973 is a pointer to the manner in which the provisions of the 1972 Act and the 1973 Rules were meaningfully and reasonably interpreted, so as to preserve the rights of the members-or their heirs, and not to deny the same by resort to hyper-technical interpretations. What was considered material and relevant, was whether the member was eligible and qualified on the date of becoming a member, and subsequent change of circumstances – which may well be beyond one‟s control, were not permitted to be cited as a reason to deny ownership in the property right attached to the membership in the society.
8. We may now notice some relevant facts of the present case which have led to the filing of the present writ petition, which bring out the extremely unreasonable and uncooperative manner in which the respondent society has dealt with its own member, i.e. the petitioner who, and whose transferor, i.e. the grandmother, contributed in the raising of the flats in the society.
9. The petitioner‟s grandmother Late Smt. Satwant Kaur Nanra acquired the membership of the respondent society on 01.07.1968. She was one of the original members of the society. It was never the case of any one, that when she became a member, she was in any manner disqualified to become a member. No such issue arose, and none can be raised at this stage. The petitioner was gifted the membership, and the rights which go with the said membership in the respondent society, in the year 1990, by his grandmother. The membership of Late Smt. Satwant Kaur Nanra was transferred in the name of the petitioner and all legal formalities in that regard were completed in the year 1990 itself. Once again, we may notice that no issue with regard to the petitioner‟s substitution was raised contemporaneously, even if one could be raised. The petitioner upon being granted the option, opted for a „Type B‟ flat having a buildup area of 125 sq.mt (1350 sq.ft) being a 3 bedroom flat. He also discharged of his liabilities towards the society in respect of a „Type B‟ flat.
10. It appears that some time in 1997, the respondent society sought to unjustifiably deny a „Type B‟ flat to the petitioner as opted by him and, instead, sought to palm off a „Type D‟ flat to him, without any rhyme or reason. It is very unfortunate that persons who are at the helm of affairs of the cooperative societies i.e. who control the management of the society, at times, misuse their authority with a view to favour some other members, the consideration for which remains concealed, but is not difficult to fathom.
11. The petitioner did not take this action of the respondent lying down. He insisted on allotment of Type B flat to him as per his option and entitlement. When the respondent society did not relent, he raised a dispute in arbitration under Section 60 of the 1972 Act. He succeeded in arbitration with the passing of an Award by the Arbitrator Shri T.C. Rana on 15.05.2000, who held that the petitioner was eligible for a category „Type B‟ flat, and his category could not be changed by the respondent society.
12. The respondent society, however, did not implement the said Award on its own. On 23.09.2002, the Assistant Registrar in the office of the RCS, ordered the respondent society to immediately implement the Award dated 15.05.2000. He called for a compliance report within 30 days, failing which the Recovery Officer of the RCS Department was requested to get the Award implemented in accordance with law. The said direction of the Assistant fell on deaf ears, and the respondent society still did not comply with the Award and the subsequent direction. The petitioner also called upon the Recovery Officer to execute the Award, but no avail.
13. In that background, the petitioner preferred W.P.(C.) No. 5562/ 2004 before this Court seeking implementation of the Award dated 15.05.2000. It appears that there were other petitions also preferred by aggrieved members against the management of the respondent society. The petitioner‟s aforesaid writ petition was disposed of on 05.09.2006 along with other petitions. The Court endorsed the appointment of an Enquiry Officer, namely Ms. Urmila Rani, a retired ADJ by the RCS. She was asked to hear all the grievances of the parties and members, and on that basis, to prepare a list of eligible members as per their seniority for allotment of flats in all categories, category wise separately, and to hand over the same to the thereafter. This process was made time bound by the Court. The petitioner appeared before the Enquiry Officer. The Enquiry Officer prepared the report and again found the petitioner entitled to a „Type B‟ flat. On 08.05.2014, the Registrar of Cooperative Societies, Shri D.S. Pandit again found the petitioner entitled to „Type B‟ flat. He was found to be the senior most with regard to the eligibility for allotment of „Type B‟ flat. The respondent society undertook to allot to the petitioner a „Type B‟ flat, provided the petitioner paid the balance amount. On 05.04.2015, the respondent society raised a demand notice for Rs. 15,04,522/- upon the petitioner which was paid by the petitioner through his father and GPA holder on 07.04.2015. Yet, the petitioner was not made allotment of and handed over „Type B‟ flat. The respondent No. 2 society required the petitioner to provide documents on 09.06.2016, which he provided. He continued to follow up the matter with the respondent society, but to no avail. Left with no option, he preferred the present writ petition in October,
2019.
14. The respondent society, in response to this petition, has filed a short affidavit. The respondent society seeks to deny the allotment of the flat to the petitioner on the ground that he was found to be a permanent resident of USA. This was cited as the reason for claiming that the petitioner was not eligible to be allotted a flat. It was claimed that the petitioner was a Non- Resident Indian and a permanent resident of USA for more than 20 years. The respondent sought to place reliance on several documents provided by the petitioner in support of this plea. Reliance was also placed on Rule 24 of the 1973 Rules. The relevant extract of the said Rule reads as follows: "24. Condition to be complied with for admission to membership:-
1. No person shall be admitted as member of a cooperative society unless- (iii). He has fulfilled all other condition laid down in the Act, the Rules and the Bye-laws. (v). In case a cooperative housing Society, he has been a resident of National Capital Territory of Delhi for a minimum period of three years at the time of applying for a membership in such Society. Vide notification No. F.47/Legal /Policy/ Coop/ 92/1594- 1605 dated 22.04.1997." (Emphasis supplied)
15. The respondent society claimed that it was essential for the petitioner to comply with the aforesaid Rule, even prior to 22.04.1997, when the same came into force. The respondent society placed reliance on its Bye-laws which, inter alia, provided in Bye-law 5 that: “5 (i) Any person shall be eligible to be a member of the society provided- (a) he is domiciled in Delhi/ New Delhi/ Delhi Cantonment (b) his written application for membership has been approved by a majority of the Managing Committee;
(c) his age is more than 18 years, except in the case of minor heirs of a deceased member.” (Emphasis supplied)
16. It further stated that the circular dated 16.12.1992 issued by the RCS, dispensing with the requirement of proof of residence for becoming a member of Group Cooperative Housing societies was only prospective, and not retrospective.
17. The respondent society has itself produced the circular dated 24.02.1994, in which the Registrar of Cooperative Societies has conveyed as follows: “In the case of cooperative group housing societies, decision was taken long back to dispense with the requirement of proof of residence in Delhi. We have gone further to delete this clause from the bye-laws of these societies. We have already issued a notice to all the cooperative group housing societies under Rule 16 of Delhi Coop. Societies Rules, 1973, to amend their byelaws by deleting the clause of requirement of residence in Delhi for the membership at the time of enrolment. In view of this, whether a person is residing in Delhi or outside Delhi becomes an irrelevant issue”
18. It further stated that vide letter dated 03.01.2001, the Registrar of Cooperative Societies withdrew its earlier circulars dated 16.12.1992 and 24.02.1994, and it was expressly stated that “eligibility of members of Group Housing/ House Building Societies for the purpose of approval of such membership for clearance of flat /plot will continue to be examined with reference to the registered by-laws of the concerned Society and Rule 24 (1) of Delhi Cooperative Societies Rule, 1973.”
19. The respondent society also states that on account of the scam relating to Group Housing Societies, on 15.10.2004, a directive was issued under Rule 77 of the Delhi Cooperative Societies Rule, 1973, whereby the Societies were directed to obtain the PAN Number/Bank Account details with address of branch, affidavit of the member duly attested by Notary, and; verification from a Gazetted officer to verify the genuine members. The further steps taken by the RCS to ensure that only genuine members are allotted flats in Housing Group Societies, have also been set out by the respondents in their counter affidavit.
20. We may now refer to the affidavit filed on behalf of the RCS respondent No.1. The said affidavit primarily narrates the stand of respondent No.2 – to the effect that the petitioner does not meet the requirements to become a member of a cooperative society, as prescribed in Rule 19 of the Delhi Cooperative Societies Rules, 2007 (the 2007 Rules) framed under the Delhi Cooperative Societies Act, 2003 (the 2003 Act). The stand taken by the RCS is that a member is defined in Section 2(r) of the 2003 Act to mean a person who, inter alia, is admitted to membership “in accordance with this Act the Rules, and the bye-laws.............”.
21. Reliance is also placed on Rule 19(1) of the 2007 Rules, which states that no person shall be admitted as a member of a cooperative society unless, inter alia, “he is a citizen of India”. Respondent No. 2 states that it received a representation from the petitioner for clearance of his membership, which was forwarded to the respondent No.2 society. Respondent No.2 opposed the clearance to the petitioner‟s membership on the ground that he is a citizen of USA for the last more than 20 years. The RCS, therefore, seeks dismissal of the writ petition preferred by the petitioner.
22. Having heard learned counsels and perused the record, we are of the view that the stand taken by the respondent cooperative society is most unreasonable, and it borders on dishonesty.
23. Unfortunately, the RCS has also not acted independently and fairly. The RCS has abdicated its responsibility to examine the position in accordance with law. It has also failed to enforce implementation of its own orders, and sided with an unreasonable management of the respondent cooperative society. The RCS has left the petitioner to fend for himself, without examining his grievance.
24. As noticed hereinabove, the petitioner was gifted the membership, and all the rights that go with it, in respect of the respondent society by his grandmother as early as in 1990. The share was transferred in his name. It is nobody‟s case that in the year 1990, the petitioner suffered from any disqualification, or that he was not a resident of Delhi, and not domiciled in Delhi. Merely because he may have subsequently migrated to USA thereafter, is neither here, nor there.
25. In the present case, when the petitioner became member of the respondent society in 1990, he was a resident of Delhi, and he validly became a member of the society. Over the years, his destiny took him overseas, and admittedly, he is settled in U.S.A. for the last many years. He acquired an American Passport in the year 2011. He states that he holds the O.C.I. Card since 2015.
26. Firstly, we may note that the requirement that the person should have been a resident of National Capital Territory of Delhi for a minimum period of three years at the time of applying for membership of a Society, was introduced in Rule 24 of the 1973 Rules, only in the year 1997 vide notification dated 22.04.1997. In the year 1990, there was no such prescription in the rules. The said prescription, therefore, could not be applied in respect of members who were already enrolled. The eligibility to become a member of a Co-operative Society has to be seen and tested on the basis of the Rules/ Bye-Laws applicable on the date on which the applicant seeks membership, and not on each day thereafter. If the eligibility conditions are tested on each day thereafter, it would be a never ending process. The Act and the Rules do not lay down till when the said eligibility conditions would bind the member.
27. That is also clear from a reading of Rule 24 of the 1973 Rules, since the heading itself states “conditions to be complied with for admission to membership at” (Emphasis supplied). Sub-Rule (1) of Rule 24 states “no person shall be admitted as member of a Co-operative Society unless......” (Emphasis supplied). Therefore, the threshold bar prescribed under the Rules on the relevant date, i.e. the date on which the applicant is granted membership, has to be examined.
28. If the submission of the respondent Society, that a person – who has become a member of a Co-operative Society, should continue to satisfy the conditions prescribed for becoming a member continuously, till allotment of a flat is made in his favour were to be accepted, it would mean that the member should get pegged down, and remain in Delhi, even if his work and destiny takes him to either another part within the country, or any other part of the world. Such an interpretation, in our view, would be highly unreasonable and would fall foul of Article 14 of the Constitution of India. It would also fall foul of Article 19(1)(d) and (e) of the Constitution of India, which protects the right of every citizen to move freely throughout the territory of India, and to reside and settle in any part of the territory of India.
29. Article 19(5) saves “the operation of any existing law insofar as it imposes or prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by” sub-clauses (d) and (e) of Article 19(1) “either in the interests of the general public or for the protection of the interests of any Schedule Tribe”.
30. The interpretation advanced by the respondents of Rule 24, of the 1973 Rules, is that the movement of the member of a cooperative society out of Delhi would be at the pain of losing his membership of the society. So interpreted, said Rule would place a restriction on the right of a member, who validly got enrolled as a member of a Co-operative Society, to move freely throughout the territory of India, or to reside and settle in any part of the territory of India as the same would come with adverse civil consequences for the member. That interpretation of Rule 24 of the 1973 Rules, would clearly be an unreasonable restriction of the Fundamental Rights of the member protected by Articles 14 and 19(1)(d) and (e) of the Constitution, and not sustainable in law. If Rule 24 were to be read in the manner suggested by the respondents, the said Rule itself would become unreasonable and liable to be quashed.
31. It is a well settled principle of law, that an interpretation which saves the law should be preferred over an interpretation which results in it being struck down as arbitrary, or illegal. Thus, the only reasonable way of reading Rule 24 of 1973 Rules would be to understand the restrictions contained in the said Rule as applying at the time of grant of membership of a Co-operative Society, and not thereafter. The said conditions can certainly not be applied retrospectively.
32. Now turning to the prescription contained in Bye-Law 5 of the Bye- Laws of the respondent Society, which inter alia states that the applicant who seeks membership of Society should be “domiciled in Delhi/ New Delhi/ Delhi Cantonment”. This restriction does not come in the way of the petitioner, inasmuch, as, it is not the case of the respondents that at the time when the petitioner applied for membership, and obtained the same, he was not domiciled in Delhi/ New Delhi/ Delhi Cantonment. His subsequent flight to USA cannot lead to his disqualification for the same reasons, as discussed hereinabove.
33. The fundamental principle enunciated in O.P. Sethi (supra) and S.K. Tandon (supra) applies to the present case as well. In those two cases, the member – who had been validly enrolled as a member and did not suffer from any disqualification on the date when he became a member, was sought to be declared as disqualified by the society on the account of him acquiring another property by inheritance.
34. In S.K. Tandon (supra) the Court held that where the right to membership, and the consequent allotment are acquired by inheritance, there was no question of disentitling the legatee from the ownership of the property, which comes with the share. In S.K. Tandon (supra), the father of the petitioner had paid some part of the price before his death. Upon the death of the father-member, his son acquired the membership, and the right in the allotment by inheritance.
35. This Court held that merely because the son made payment of balance instalments, he could not be disentitled from inheritance. The golden thread which runs through the two cases above referred, i.e. O.P. Sethi (supra) and S.K. Tandon (supra), and the present case, is that the mere turn of destiny with passage of time would not result in disqualification of a member, who was validly enrolled, and on that premise, the member cannot be denied the right to property for which he has already invested his hard-earned savings. Thus, reliance placed by the respondents on Rule 24 of the 1973 Rules, and Bye-Law 5(1) of the Bye-laws of the respondent Co-operative Society is completely misplaced, and the same is rejected.
36. The RCS has placed reliance on Rule 19 of the 2007 Rules. The said Rule stipulates the conditions to be complied with for admission to membership of a Co-operative Society. Rule 19(1)(i) states that “no person shall be admitted as member of a co-operative society unless - he is a citizen of India”. Clause (vi) of Rule 19(1) states that in the case of a Cooperative Housing Society, the person should be “a resident of the National Capital Territory of Delhi - for a minimum period of three years at the time of applying for a membership of such society”.
37. Reliance placed on Rule 19 by the RCS is misplaced in the light of Section 141 of the 2003 Act. Section 141 of the said Act deals with repeal and savings. It expressly provides that upon repeal of the 1972 Act, the said repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed Act. Thus, reliance placed on Rule 19 is misplaced, not only for the reason that the said Rule deals with the conditions to be complied with for, and at the time of admission to membership of a Co-operative Society – the situation with which we are not concerned, and also because the rights and privileges acquired by a member under the 1972 Act are saved, and cannot be taken away by resort to any provision of the 2007 Act.
38. We may refer to the decision of this Court in Bhatnagars’ Cooperative Housing Building Society Ltd. V. Sandeep Bhatnagar &Anr., 2018 SCC Online Del 10017, wherein the Division Bench, inter alia, observed as follows:- “10. Counsel for the petitioner submits that model bye-laws also had a clause stipulating that no person shall be a member unless he would sign a declaration that he/she, spouse or any of his/her dependants did not own a dwelling house or plot in Delhi and was not a member of any other cooperative society. It is submitted that these bye-laws should have been applied when the transfer in 1967 was made. We are not impressed with this argument for the simple reason that the Cooperative Society could have inducted Late BrijNathSwarupBhatnagar as a member in his own right as on 27 February, 1967. Late BrijNathSwarupBhatnagar had not incurred any disqualification under the bye-laws or the Rules. Correct facts were always known and it is not alleged that facts were concealed. Cooperative Society after deliberation and consideration had enrolled Late BrijNathSwarupBhatnagar as a member. (Emphasis supplied)
39. In H.K. Madhia v. The Financial Commissioner &Ors., 2016 SCC Online Del 2270, this Court observed as follows:- “12. Learned counsel for the petitioner argued this aspect before this Court relies on Section 141 of the DCS Act, 2003 to say that all acts done under the repealed DCS Act, 1972 and DCS Rules, 1973 are protected. It is argued that since he had obtained membership under the DCS Act, 1972 and DCS Rules, 1973, his right cannot be challenged under the new Act. There can be no dispute with the proposition propounded that the protection of Section 141 is available. However, it extends to only those acts validly done under the provisions of the old Act and the Rules. The petitioner claims to have became a valid member of the Society in terms of the provisions of old Act and Rules.” (Emphasis supplied)
40. The petitioner presently being a USA citizen, is also an OCI card holder since 2015, and has the privilege to purchase or sale immovable properties, except agricultural land, farm house or plantation property. According to the Ministry of Home Affairs Foreigners Division notification F.No. – 26011/Misc./47/2019-OCI dated 22.07.2021, point 26 of the Frequently Asked Questions (FAQs) reads as under: “26. What are the benefits to an OCI Cardholder? (4) parity with Non-Resident Indians in the matter of-
(i) inter-country adoption of Indian children subject to the compliance of the procedure as laid down by the competent authority for such adoption;
(ii) appearing for the all India entrance tests such as
National Eligibility cum Entrance Test, Joint Entrance Examination (Mains), Joint Entrance Examination (Advanced) or such other tests to make them eligible for admission only against any Non-Resident Indian seat or any supernumerary seat: Provided that the OCI Cardholder shall not be eligible for admission against any seat reserved exclusively for Indian citizens;
(iii) purchase or sale of immovable properties other than agricultural land or farm house or plantation property; and
(iv) pursuing the following professions in India as per the provisions contained in the applicable relevant statutes or Acts as the case may be, namely:- (a) doctors, dentists, nurses and pharmacists; (b) advocates;
(c) architects;
(d) chartered accountants;” (Emphasis supplied)
41. We also fail to appreciate as to how the respondent society can even be permitted to raise such a plea. The respondent society – as aforesaid, raised a demand in excess of Rs.15 Lakhs upon the petitioner after the entitled to allotment of Type-B category flat, as late as 2015. The petitioner paid the same promptly, and the respondent society appropriated the amount as well.
42. Mr. Kumar has sought to justify the stand of the respondent society by submitting that on account of the scam in relation to enrolment of fake members in different societies, the requirement of verifying the membership at the stage of allotment has been introduced, and the petitioner does not meet the said requirement for the reasons aforesaid.
43. We do not find any merit in this submission. The petitioner‟s case cannot be categorised as one requiring re-establishment of his eligibility after nearly three decades from when the first allotments were made by the respondent society. The petitioner, admittedly, is a very old member, who was gifted the membership by his grandmother. It is not the respondent society‟s case that he has irregularly been enrolled by the society through the back door.
44. Ms. Takiar – who appears for the RCS, fairly states that the petitioner‟s case, in any event, cannot be sought to be covered by the change in the requirements of scrutiny by the Rule 90 Committee, since the allotments in the society in question were made in the 90‟s.
45. In the facts & circumstances of the case, we allow the present petition and direct the Registrar of Cooperative Societies to forward the case of the petitioner for allotment of a „Type B‟ category flat, having built up area of 125 Sq. Mts. (1350 Sq ft) i.e. a 3 bedroom flat, within two weeks of receipt of this judgment to the DDA – without awaiting for any verification by the Rule 90 Committee, since the petitioner satisfies all relevant conditions applicable to him. The DDA shall act upon the recommendation made by the RCS within two weeks thereafter, by making allotment of a Type-B category flat to the petitioner by holding a draw of lots amongst the two flats which are available in the said category. The petitioner shall be placed in possession thereof soon after the draw of lots by the respondent society.
46. We also subject the respondent society to costs of Rs.[3] Lakhs to be paid to the petitioner on account of the petitioner being put to untold and undue harassment, and his not being able to use the flat, for decades.
47. List for compliance on 23.05.2022.
VIPIN SANGHI, J JASMEET SINGH, J JANUARY 28, 2022 B.S. Rohella / N.Khanna