IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 4115 of 2008 Date of decision: 9th October, 2009 Col. Sartaj Singh Sohi (Retd.) and another … Petitioner Versus State of Punjab and others … Respondents CORAM: HON’BLE MR. JUSTICE T.S. THAKUR HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. R.S. Bajaj, Advocate for the petitioners. Mr. Rupinder Khosla, Additional Advocate General, Punjab for respondents No.1 to 3. Mr. Jatinder J.C. Nagpal, Advocate for respondent No.6. Mr. Arun Palli, Senior Advocate with Mr. Tushar Sharma, Advocate for respondents No.7 to 14. Notes: 1. Whether Reporters of local newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? KANWALJIT SINGH AHLUWALIA, J. Residents of Kewal Vihar Society, Jalandhar (hereinafter referred to as, ‘the Housing Society’) have allegedly committed violations of sanctioned building plan. Some of these violations are major in nature, which call for resumption of houses/ flats. Some, being minor, are liable to be condoned. There are allegations of various encroachments by the Civil Writ Petition No. 4115 of 2008 residents, on the Housing Society land by raising a permanent or temporary structure. It is stated that the residents of the Housing Society have committed minor encroachments by covering the outer part by laying Quota Stone/ Plain Cement/ Concrete or by other material like Marble and had merged this outer part with their houses. These alleged encroachments have been done by the allottees of the Housing Society on periphery. Major encroachments pointed out include construction of permanent structures like roof (single/double storey), erection of walls or installation of temporary gates to use public area exclusively for the benefit of encroachers. It is alleged in the writ petition that in this manner, members of the Housing Society have been deprived of the use of common land. The allegations regarding violation of the sanctioned building plan and instances of encroachments enumerated have lead two residents of the Housing Society to file present writ petition, purportedly in public interest, praying that the respondents be directed to remove the illegal encroachments done on the public land by the residents of the Housing Society with a further prayer that criminal cases be registered against the encroachers and this Court should ensure that no encroachment takes place on the public land in future. This writ petition, after completion of the pleadings, has ended up in raising another question of significant importance, as to who will be responsible and duty bound to remove the encroachments and cure the violations of sanctioned building plan committed by the residents of the Housing Society, as the respondent to the writ petition have refused to own this responsibility and instead has shifted the onus upon one or the another. The writ petitioners claim themselves to be the residents of the Housing Society and they have projected in the writ petition that they 2 Civil Writ Petition No. 4115 of 2008 are deeply concerned with encroachments done on public land of the Housing Society by certain residents of the locality. They have averred that the members of the Housing Society were allotted the land for construction of their houses. By raising boundary walls or putting barbed wires/grills, they have covered the common area of the Housing Society for their exclusive use. It is further alleged that some members of the Housing Society have raised permanent construction on the public land. In support of this, they have attached photographs also. It is further submitted in the writ petition that the Kewal Vihar Cooperative Housing Maintenance Society Limited respondent No.6 (hereinafter referred to as, ‘the Maintenance Society’) and its President, even though have approached the Municipal Corporation, Improvement Trust, Deputy Commissioner and Senior Superintendent of Police, yet they have not come forward to assist/help the Maintenance Society to remove the encroachments or demolish the violations of sanctioned building plan. It is stated that on the request made by the petitioners, the Maintenance Society had identified the encroachments. The petitioners and the President of the Maintenance Society approached the Deputy Commissioner, Municipal Corporation and Improvement Trust, respondents No.2, 4 and 5 respectively. It is further submitted that a letter dated 27th November, 2007 was addressed by the President of the Maintenance Society to these official respondents, detailing the encroachments, still no action has been initiated for removing the encroachments and building violations. The petitioners, on 15th January, 2008, had further addressed a communication (Annexure P-4) to the President of the Maintenance Society, but, all efforts made have failed to elicit any response, therefore the present writ petition has been filed. 3 Civil Writ Petition No. 4115 of 2008 The brief facts, as they emerge from the pleadings, are necessary to be noticed to determine the controversy raised in the present writ petition. Jalandhar Improvement Trust had floated 143.56 acre development scheme, out of which an area of 4.34 acre was allotted to Army Welfare Housing Organization (hereinafter referred to as, ‘AWHO’) for the purpose of constructing residential houses for defence services personnel. The price of the entire land measuring 4.34 acre was charged @ Rs.170/- per square yard, meaning thereby that even the land which is not to come under house construction but is to be kept under roads, paths for community users, etc. was also charged at the common rate of Rs.170/- per square yard. Thus, this land became private property owned by AWHO, which was allotted to the eligible persons (hereinafter called ‘allottees’) and later all the allottees formed a Cooperative Society. The AWHO transferred its assets, liabilities and responsibilities to the Cooperative Society. This is the stand of Jalandhar Improvement Trust respondent No.5, in the reply filed to the writ petition. It is further stated that Jalandhar Improvement Trust, as per Clause 12 of the allotment letter, has only received the cost of external development charges for providing services outside the boundary of this pocket of land, i.e. for providing points outside the land to which the internal services like water, sewerage, drainage, roads etc. could be connected. The internal development works in land measuring 4.34 acre area, such as roads, parks, water supply, sewerage etc. were to be done by AWHO at their own cost. Therefore, all open spaces including those under roads, parks etc. within the area of 4.34 acre were paid for, owned and constructed by the AWHO and were later to be looked after by the Maintenance Society. 4 Civil Writ Petition No. 4115 of 2008 Therefore, Jalandhar Improvement Trust has nothing to do with the alleged encroachments and building violations. The State Government took a stand that areas which fall under the jurisdiction of Municipal Corporation or the Improvement Trust, removal of the encroachments is within their domain and therefore, the Municipal Corporation and the Jalandhar Improvement Trust are under a bounden duty that no land or property vested in them is encroached upon or misused. Government of Punjab has stated that as per the record, the area of Society was developed by the Improvement Trust, therefore, any action, if required, can only be taken by the Improvement Trust. In the reply filed by the Senior Superintendent of Police, Jalandhar, it has been stated that as and when for removing the encroachments any police help is required, the same shall be provided. The Municipal Corporation, in its written statement, stated as under: “3. … … … that the respondent – Municipal Corporation is charged with the responsibility to safeguard the boundaries and integrity of only those lands which vest in or are owned by the Municipal Corporation, or lands which are in the care/ management of the Municipal Corporation or lands which come under Roads, Public Streets etc. In the case of roads, streets, amenities, open spaces, etc. falling within an Improvement Trust Scheme, the Municipal Corporation acquires jurisdiction and responsibilities only after these are transferred to the Municipal Corporation under Section 55 of the Punjab Town Improvement Act, 1922. Such a transfer has not been done in the present case. The land falling in the AWHO Colony whether under residential houses or otherwise, does not fall in any of the above mentioned categories and thus, the Municipal Corporation has neither a responsibility nor the legal sanction to take any steps for the removal of the alleged encroachments in this colony.” 5 Civil Writ Petition No. 4115 of 2008 Santokh Singh, President of the Maintenance Society, pleaded in the Counter Affidavit filed that he has been taking up the matter with the local administration as well as with AWHO for removal of the encroachments. The AWHO deputed its Project Director to visit the Housing Society. The Project Director submitted status report, in which major and minor encroachments have been mentioned. Thereafter, as President of the Maintenance Society, he took up the matter with the local administration for removing the encroachments, but local administration has taken no action. The AWHO issued notice dated 20th June, 2008 to the defaulters to show cause as to why allotment of their dwelling unit be not cancelled. The President of the Maintenance Society has averred as under: “2. … … … … Thus, it is clear that the answering respondent has been bonafidely pursuing the matter with the authorities at each and every step but if the local administration has failed to get the said encroachments removed, answering respondent is feeling helpless in the matter.” During the pendency of the present writ petition, eight members of the Housing Society filed an application to be impleaded as respondents. The application was allowed and they were impleaded as respondents No.7 to 14. They submitted in their application that Kewal Vihar complex has in total 66 dwelling units and it is a walled complex, which has a boundary wall running all along the complex and has two gates for entrance and exit. According to them, residential complex is managed, administered and maintained by the Kewal Vihar Housing Cooperative Maintenance Society Ltd., Jalandhar and as per the revenue record, the ownership of the land vests in the Army Welfare Housing 6 Civil Writ Petition No. 4115 of 2008 Organization. An apprehension was raised that respondent No.6, the Maintenance Society will not be able to safeguard the interests of the residents, therefore, they be permitted to contest the writ petition. In their written statement filed, respondents No.7 to 14 have submitted that AWHO is a registered Society as per the provisions of the Societies Registration Act, 1860. The principal aim of the AWHO is to promote appropriate housing schemes at various stations for the welfare of serving defence personnel and ex-servicemen. Vide registered sale deed dated 21st June, 1996, AWHO had acquired 4.34 acre land out of the total 143.56 acre scheme floated by the Jalandhar Improvement Trust for development of residential housing project, named and known as Kewal Vihar, Jalandhar. The ownership and possession of the aforesaid land is in the name of AWHO as per the revenue record. The Jamabandi pertaining to year 2004-05 has been annexed as Annexure R-1 to the written statement filed by respondents No.7 to 14. The AWHO had built flats on the aforesaid land, allotted the same to the successful applicants and ownership and possession of the flats was handed over to the successful applicants vide separate registered sale deeds. We have heard counsel for the parties. The AWHO, for allotment, maintenance and upkeep of the housing schemes, had formulated AWHO Rules, 1987. Rule 68 envisages that the allotment shall only be made when the allottee had paid all the dues and service charges, submitted required affidavits and importantly has become member of User’s/Cooperative Society of allottees. Rule 76 makes it mandatory for every allottee to become member of the Maintenance Cooperative Society. Rule 76 reads as under: “76. Those allotted dwelling units in a particular project/ colony will have to become member of its Registered 7 Civil Writ Petition No. 4115 of 2008 Co-operative Society in accordance with Bye-Laws approved by the organization. The colony thereafter, will be maintained, managed and administered by the Co-operative Society. Prior to the registration of the Co-operative Society, AWHO shall assist in the formation of User’s Committee from among the allottees as a first step towards formation of the Co-operative Society through election.” Duties of the maintenance of Housing Cooperative Societies have been defined in Rule 78. It will be apposite to reproduce Rule 78 also, which reads as under: “78. The Co-operative Society will be responsible for maintaining all common services such as lifts, generators, water pumping sets, roads, paths, parks, gardens, general arboriculture, storm water drain, sewers, street lights, sanitation and sweeping of common stair cases, galleries and the like at the expense of its members. It shall also be responsible for the external repairs such as colour/ cement distempering or white washing as the case may be. It will pay all ground rents, fees and taxes for common facilities and collect all rents, stallage charges from shops and other community buildings. It will enter into such agreement with the Organisation as the latter may prescribe.” Rule 71 prohibits any allottee to make any alteration or encroachment. Rules 71 and 72 read as under: “71. No allottee shall be entitled to sub-divide the dwelling unit including ancillaries or amalgamate it with any other dwelling unit, or make any addition or alternation to it, without prior permission in writing of the Organisation/ civil authorities. 72. Portions of land/areas not allotted in the residential scheme have either been allotted to some one else or kept reserved for common use and services which shall be 8 Civil Writ Petition No. 4115 of 2008 managed by the respective Project Owners Co-operative Maintenance Society. The allottee shall in no way encroach upon the common portion and services. All unauthorized encroachment are liable to be removed at his cost.” In consonance with these Rules, Kewal Vihar Housing Maintenance Society Limited, Jalandhar has drafted and adopted by-laws. It will be necessary to notice important provisions of these bye-laws: “II: AIM AND OBJECTS OF THE SOCIETY 5. The objects of the society shall be: (a) To manage, administer and maintain the ……… …………………………………… on which the dwelling or other building have been allotted to its registrants. (b) To establish and carry out sanitary, social, educational, shopping and recreational activities for the benefits of the members. (c) To maintain, at the expense of its members all common services such as roads, boundary walls, gate, parks, drains, sewers, pumps, security guards, street lights and other properties. To ensure sanitation and security of the colony and to arrange sweeping of common area, paths, roads, drains and the like. …………………………………………………………….. …………………………………………………………….. (f) To prevent encroachments on common land, parks and Government land. (g) To undertake measures to spread knowledge of co-operative principles and practices. (h) To undertake such other activities as are conductive to the attainment of the above objects. VII: MANAGEMENT 25. The management will consist of General Body and Managing Committee. …………………………………………………………….. …………………………………………………………….. 9 Civil Writ Petition No. 4115 of 2008 31. Every member of the general body shall have one vote. Voting by proxies shall not be allowed at the General Body. Unless otherwise provided in these byelaws, all questions shall be decided by a majority of votes of the members present. When the votes are equal the chairman of the general body shall have a casting vote. 32. Unless otherwise provided in the bye-laws the ultimate authority in all matters relating to the administration of the society shall vest in the general body. 33. Without prejudice to the general provisions of the preceding byelaws the general body shall have the following powers and duties: …………………………………………………………….. …………………………………………………………….. (g) Consideration of the future plan of the construction and maintenance of area of the society and general layout of the trees, garden and other common utility facilities. (h) To sanction construction and levels from member for common service rendered by the Society. (i) To decide the manner in which maintenance and further development/ construction work will be carried out by the society. …………………………………………………………….. …………………………………………………………….. (k) To expel members subject to the approval of Registrar. (l) To fix rate of contribution to be made by the members for maintenance of the estate of the Society. …………………………………………………………….. …………………………………………………………….. 44. Meeting of the managing committee shall be held when necessary one third of the total members shall form the quorum. The president or the vice-president or in his absence a member elected from those present in a meeting for the purpose shall preside. Unless otherwise provided in these byelaws all questions shall be decided by majority of votes. 10 Civil Writ Petition No. 4115 of 2008 Each member shall have one vote. In case of equality of votes the chairman shall have a casting vote. 45. The managing committee shall exercise all the powers and discharge all the duties of the society except those reserved for gen. body subject to any regulation or instructions duly laid down by the Society in general meeting or in the byelaws. In particular, the managing committee shall have the following powers and duties: (a) To observe in all their transactions the acts the rules and the byelaws. (b) to (y) (not required to be reproduced) XV: MISCELLANEOUS 73. No allottee or sub lessee shall at any time quarry any stone, digging or do any act, which may be harmful to the building or the estate of the society. 74. No allottee or sub lessee shall make any alteration in or addition to the house allotted to him without the approval of the committee in writing and subject to the Bye laws AND OR INSTRUCTIONS OF …………………… 75. Each allottee or sub lessee shall be responsible for internal repairs of the house allotted to him. White washing and other repairs of the Common area is the responsibility of the society subject to approval by the committee. …………………………………………………………….. …………………………………………………………….. 77. No allottee or sub lessee will do anything which may cause a nuisance, annoyance or inconvenience to the occupants adjacent, or in the neighbourhood or which is prejudicial to the interest of the society. …………………………………………………………….. …………………………………………………………….. 79. No allottee or sub lessees shall be allowed to sublet any portion of the house to any one without the approval of the society in writing.” 11 Civil Writ Petition No. 4115 of 2008 From the facts and various provisions noticed above, it can be summed-up as under: (i) Jalandhar Improvement Trust had allotted 4.34 acre of land to AWHO. (ii) AWHO built 66 dwelling units and made allotments. (iii) The allotment letter of AWHO makes it compulsory for an allottee to become a member of the Maintenance Society meant for maintenance and managing the affairs of the housing complex. (iv) The AWHO Rules, 1997 proscribe an allottee from making any violation of building laws or encroaching upon the common area. (v) Bye-laws of Kewal Vihar Cooperative Housing Maintenance Society vest power in the general house to expel a member, subject to approval of the Registrar. (vi) No allottee or sub-lessee can make any alteration or addition to the dwelling unit allotted to him, without the approval of the Maintenance Society/ AWHO. (vii) No allottee can act prejudicial to the interest of the other members of the Society. (viii) The allotment of land by the Improvement Trust, as one who envisaged the scheme and in pursuance thereof, have made the allotment, can insist and ensure that terms of the allotment letter are adhered to by the AWHO and the Maintenance Society. (ix) Internal arrangements are controlled by the bye-laws of Maintenance Society, which require a notice to be issued to the owner of a dwelling unit, when it is alleged that 12 Civil Writ Petition No. 4115 of 2008 unauthorized construction has been carried out by the allottee of the dwelling unit. (x) In case the allottee/ resident of the dwelling unit seeks compounding of excess construction and same is permissible, necessary procedure is to be followed, otherwise excess construction being unauthorized and non- compoundable, is required to be removed/demolished. (xi) Jalandhar Improvement Trust, which in order to curb haphazard urban development, envisaged the scheme, can regulate and insist that all the allottees/ purchasers of the land adhere to the sanctioned building plan. (xii) Umbilical cord between the Improvement Trust and AWHO is not severed with constitution of Maintenance Society. The cooperative movement vests rights in the members of the Society to manage their affairs democratically. A shareholder of a Cooperative Housing Society does not own real estate but a share in the legal entity. Each resident, being an allottee or subsequent purchaser, has membership in the Cooperative Maintenance Society. Any member of the Maintenance Society, who is a persistent defaulter in respect of any dues of Cooperative Housing Society or has acted detrimental to the interests and proper working of the Cooperative Society, can be expelled. Expulsion, after following due procedure, disentitle the member to retain interest in the allotted dwelling unit, therefore, it will amount to resumption of the dwelling unit vested in the member. Every member of the Cooperative Housing Society is entitled to undivided interest in the common area and facilities pertaining to the dwelling unit allotted to him. 13 Civil Writ Petition No. 4115 of 2008 In the present case, AWHO had issued a show-cause notice to the allottee/ member of the Housing Society. In the circumstances, we are of the view that the present writ petition can be disposed of with the following directions: (a) The Improvement Trust Jalandhar, in consultation with the office bearers of the Maintenance Society along with the representative of the AWHO, shall conduct inspection of the premises to find out encroachments and violations of the sanctioned building plan made by the residents. The inspection note shall also state as to which violations are compoundable and which are not, that need to be cured immediately. Similarly, the encroachments which call for removal, will also be mentioned in the inspection note. (b) The Maintenance Society shall convene a special annual general meeting, in which issue of violation of sanctioned building plans and encroachments ought to be taken up for consideration. The inspection note prepared in pursuance of directions, noted above, shall form part of agenda of the special annual general meeting. (c) That AWHO shall appoint an Observer for conducting special annual general meeting. (d) Once encroachments and the violations are brought on the agenda and placed for consideration before the members, the house will decide as to what action, if any, is proposed to be taken by the Housing Society against the erring member(s). Any member, who is not satisfied with the decision of the majority, under the provisions of the Cooperative Societies Act, shall be free to approach the authorities for redressal of his grievances. 14 Civil Writ Petition No. 4115 of 2008 We are hopeful that the observations made and the directions issued hereinabove, will solve the problem, which the residents of Kewal Vihar Society, Jalandhar are facing. We expect that they will rise to the occasion and do what is necessary for the betterment of the affairs and management of the Housing Society. No order as to the costs. [T. S. THAKUR] CHIEF JUSTICE [KANWALJIT SINGH AHLUWALIA] JUDGE October 9, 2009 rps 15