% 20.04.20L0 Present: Mr. J.K. Chawla, Advocate for the Petitioner. Mr. S.S. Jain, Advocate for Respondent No'1. Mr. Rohit Madan, Advocate for Respondent No.3. Respondent No.2 is a formal PartY. + WP (C) No.7879/2009 + WP (C) No.7893/2009 Learned counsels for the parties have made submissions on the basis of the facts in WP (C) No.787912009 and submitted that the same question is involved in WP (C) No.789312009 of which facts need not be referred to and WP (C) No.7893/2009 would abide by the decision in WP (C) No.7879/2009. The petitioner Society seeks to challenge the order dated 24.9.2008 passed by the Appellate Tribunal which order confirmed the order dated I4.5.2007 passed by the Registrar holding that the disputes are not referable to arbitration by means of this writ petition under Articles 226 &.227 of the Constitution of India. The facts of the case are that respondent No.1, a member of the petitioner Society, had disputes with the petitioner Society with regard to certain payments. This resulted in expulsion of respondent No.1 who challenged the same before the appellate authority by filing of the appeal. On 29.7.1987 the appeal of respondent No.l was allowed. The Society preferred a writ petition against the order which was dismissed on 22.8.1990. The Society further went up in LPA, which was also dismissed on 13.12.1991. WP (C) Nos.7879/2009 & 78932009 Page 7 of 6 t- ,F Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified Thus, tnJ"*prlsion was held to be not valid on account of .f f.g"pf \ non-payment of dues. Much after this achieved finality, the petitioner Society again sought to raise disputes allegedly on the ground that maintenance charges were payable by respondent No.1. Both the authorities below, viz., the Registrar as also the Appellate Tribunal have considered and held that the possession of the flat when given to respondent No.1 was grossly incomplete and various works had to be done by the members of the Society, including respondent No.l. Accordingly, both the authorities have held that the petitioner ); Society was not justified in its claim with respect to the maintenance charges. The following findings of the Registrar are relevant and the same are reproduced hereinbelow: . "l have gone through the claim petition as well as replies filed by the defendants. I have also heard both the parties at length. lt has been gathered that it is very old and complicated case. The matter is going on since 1989 when an order was passed by the Hon'ble High Court in CWP No.1530/89 in favour of defendant rejecting case and claim of society without giving any equitable relief to society. In fact, the Reqistrar, Co-operative Societies issued directives under Rule 77 of Delhi Co-operative Societies Rule 1-973 dated 7.2.2002 to the society statinq that Manaqino Committee of the societv is not complvinq the relevant orders, the directions of RCS dated 23.2.1989 and 'F- of the Hon'ble Hioh Court judgement in CWP No.1530/89 which attained finality for implementation and has also been confirmed further by an order in LPA 73190 in the case of Shri Anant Bir Singh and Ati Bir Singh who have been representing the Managing Committee of the society is avoiding compliance of the above orders, conveyed to the society vide RCS directions dated 17.8.2001 and , - ,?i_ wP (C) Nos.7879/2009 & 78932009 Page 2 of 6 23.I0.2001 and 10.1.2002 without sufficient reasons. Hence, in view of this, the Ld. Registrar directed the society to comply Hon'ble High Court orders in CWP No.1530/89 dated 22.8.L990 read with RCS order dated 23.2.L989 dated 24.3.200L with immediate effect failing which action under section 32 of Delhi Co-operative Societies Act would be taken against the society. It is also observed that the Manaoinq Committee of the Co-operative Societv did not complv with the directives issued under Rule 77 of the DCS Act dated 7.2.2002. Hence, Ld. Registrar issued Show Cause Notice for supersession of the Managing Committee of the society under section 32 of the Act vide notice dated 8.4.2002 and proceedings initiated are pending. It is also observed that in pursuance of the directions dated 5.6.1998 of RCS Office the defendant has deposited amount as per the calculations conveyed (including installments of presumed loan amount with rr interest thereon) on 22.6.L998 with the society under protest, along with his objections. The defendant objected the claim of the society inter alia in respect of the installments of presumed loan (with interest claimed thereon) etc. The said objections are till date pending disposal. The defendant has also produced a copy of the possession letter dated 11.10.2000 of the flat and proceedings dated 20.2.2003, 29.4.2003 wherein it has been stated that the societv undertook to complete the remaininq civil internal electrification and internal sanitarv works if anv in due course. A list of remaining works was also attached along with the possession letter and has also admitted on the said dates uls 32 before RCS to make the flats in habitable conditions to the satisfaction of defendant. The claimant societv has not complied with its above said undertakinq. Thus, the allotment of flat is merely an allotment and not meant for use and occupation of the defendant and until the same not repaired, made in habitable condition after removing defects and repairing ; damages and completing incomplete works, no maintenance charges applicable or claimed. The Hon'ble State Commission held in the case Sh. F,S. Chauhan Vs. DDA in appeal no.507/3 that no authority or organization engaged in construction of houses can be WP (C) Nos.7879/2009 & 78932009 Page 3 of 6 \p s ? X.. r a v- allowed to force the consumers to take possession of a \ - constructed flat without providing and the action of DDA in \ \ demanding maintenance charges instead of refunding excess amount was held most reprehensible and uncalled for. The Hon'ble State Commission further in the matter of New Modern Coop. G/H Society Vs. Manoj Kumar Gupta in appeal No.206/2000 held non-attending complaint of member for rectifying defects by society, the cause of action is of subsisting nature and continue till grievance is red ressed But in the present case society has failed either in complying the order mentioned above, allow to decide the pending objection of defendant or to repair the flats. ln view of the above, I do not find any reason to accept the claim of the society since it is the societv who has acted malafide in not fonryardino the applications of ,.: the respondent member to the DCHFC Ltd. and in not completinq the remainino civil and electrical work of the flat and in not complvinq the directions of RCS. Therefore, keeping in view the above facts and circumstances of the case and principles of justice, equity and good conscience, I hereby dismiss the claim petition'" (emphasis supplied) The aforesaid findings being unexceptionable, have been upheld by the Appellate Tribunal by observing in regard to the maintenance charges as under: "As regards the payment of maintenance charges since the societv has deliberatelv not undertaken the repairs of the flats in spite of various orders of the hiqher authorities the societv is definitelv not entitled for recoverv of anv maintenance charqes from the members. lt is also clear +) t the possession of the flats was finally handed over in the year 2000 only to avoid further penal action against the society and the societv was verv well aware that the flats were in totallv inhabitable condition and not fit for occupation. ln the circumstances, we feel that theJoint Registrar has rightly F'. WP (C) Nos.7879/2009 & 78932009 Page 4 of 6 rejected the claims of the society. As regards the legality oftf.'" Joint Registrar's orders under appeals, w.e.are of the opinion that if is true that section 60 deals with only the admission of the claim and that normally the merits are not considereil at the stage of section 60, however, this is a peculiar case where the society has _been deliberately and consistently disobeying the RCS's orders and therefore the Joint Registrar has rightly rejected the claims of the society at the admission stage itself because the Joint Registrar was very well aware of the attitude of the society iegarding these two members and knew that no purpose would -be served by referring the claims for arbitration unless and until the society produced its record which it was consistently refusing to do even before the RCS'Wehavealsoconsideredthejudgementscitedby the learned counsel for the respondents and we agree that they are very relevant for the present .case' The resfiondents will, however, have to pursue their pending matters with the RCS on the basis of these judgements. Otherwise also the Joint Registrar has given .- detailed/reasoned orders under section 60 and these orders do not appear to be suffering from any legal infirmity. In ttie circumstances we have no other alternative but to reject the appeals and to confirm the Joint Registrar's orders under appeals' We order accordinglY." (emPhasis suPPlied) The aforesaid findings clearly establish that it is a case of harassment to the member of a society by the Managing Committee of the petitioner Society. Respondent No.1 has been running from pillar to post and despite success in various litigations has been deprived of the proper enjoyment of the flat' We posed specific queries to learned counsel for the petitioner but iistead of answering the same learned counsel proceeded to go on only by repeating one thing, i.e. maintenance charges should be paid to the society. The proceedings underArticles 226&227 of v a' t , F wP (C) Nos.7879/2009 & 78932009 Page 5 of 6 the constitution of rndia are for furtherance of the ends or;ustic-$ and not to thwart the same. The Management of the petitioner society has been dragging its member into various litigations because it has the ruxury of burdening the costs of ritigation on the society. The present proceedings seeking to set aside the concurrent findings of the forums below are crearry an abuse of the process of law and one more litigation in this chain of litigation initiated by the Management of the petitioner society to harass its member. we find no error in the impugned order. The findings being ,- identical in both the writ petitions, we dismiss both the writ petitions with costs of Rs.25,000.00 each to be personaily paid by the persons in the Managing committee who authorized the filing of the present litigations to respondent No.1 in each of the writ petition. The costs to be paid within a period of two (2) weeks from today. \( ) ffi_ SANJAY KISHAI\I KAUL, J. ,.A ll n V C4-.l,t.rl- LL4..L- vALMtKt J. MEHTA, j. r APRIL 20,2OTO b'nesh l- WP (C) Nos.7879/2009 & 7B%nOOg Page 6 of 6 i