W.P. (C) No.3424/2007 Page 1 of 10 THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on : 02.09.2009 % Judgment delivered on: 14.09.2009 + W.P.(C) 3424/2007 MADHU GOEL ..... Petitioner - versus- REGISTRAR COOPERATIVE SOCIETIES & ORS. ..... Respondents Advocates who appeared in this case: For the Petitioner : Mr. Rakesh Munjal, Sr. Advocate with Mr. Maneesh Goyal and Mr. Manish Paliwal, Advocates. For the Respondent : Ms. Deepa Tiwari for Ms. Sujata Kashyap, Advocate for respondent no.1/RCS. Mr. Sandeep Kumar, Advocate for respondent No.2. CORAM:- HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MS. JUSTICE VEENA BIRBAL 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in Digest? BADAR DURREZ AHMED, J 1. This writ petition is directed against the report dated 26.10.2006 submitted by Justice P.K. Bahri (Retd) to the extent it relates to the petitioner‟s case for eligibility for allotment of a plot in the respondent no. 2 society (Jagriti Nagar Cooperative House Building Society Ltd). W.P. (C) No.3424/2007 Page 2 of 10 2. The report came to be submitted because of an order passed by a learned Single Judge of this court in Cont. Cas. (c) No. 378/2005. The said contempt petition was filed in connection with the order dated 11.10.2000 passed by another learned Single Judge of this court while disposing of the writ petition bearing no. C.W. No. 4808/1997. It is indicated in the order dated 01.05.2006 that at the stage the said writ petition (C.W. No. 4808/1997) was filed, 102 plots had to be allotted to 102 members. It was also observed that as per the procedure prescribed by the Registrar of Cooperative Societies, at the stage of allotment of plots, continued eligibility and entitlement of the member of the society had to be verified and approval had to be granted by the Registrar of Cooperative Societies. 3. Forty-eight members out of the 102, had been cleared and a draw-of- lots had been held by the DDA on 24.08.2005. Thereafter, the said 48 members were allotted specific plots. Out of the remaining 54 members, we are told that 3 have resigned which meant that 51 members were yet to be allotted plots inasmuch as their names had not been officially cleared by the Registrar of Cooperative Societies for allotment of plots. The petitioner was one of the said 51 members. 4. Since no progress was being made in the matter concerning the verification of the membership and entitlement for allotment of plots insofar as the 51 persons were concerned, the learned Single Judge by his order W.P. (C) No.3424/2007 Page 3 of 10 dated 01.05.2006 appointed Justice P.K. Bahri (Retd) as a court nominee to scrutinize the claims of the said 51 persons awaiting clearance for the purposes of allotment. It was indicated that the list of persons cleared by Justice P.K. Bahri (Retd) would be accepted without demur by the Registrar of Cooperative Societies and that the DDA would act in pursuance of the said list. 5. It is pursuant to these directions given in the said order dated 01.05.2006 that Justice P.K. Bahri (Retd) prepared his report dated 26.10.2006. Prior to the said report, the Administrator of the respondent society had, on 21.12.2005, already recommended the petitioner‟s case for allotment. A copy of the said recommendation has been filed at Page 27 of the paper book. It is observed in the said recommendation as under:- “In view of the aforesaid discussions, I recall the earlier Resolution dated 22.2.2005 and recommend to the Hon‟ble Registrar (CS) to clear the name of Smt. Madhu Goel as there is sufficient material on record to prove her Delhi residence and she is a bonafide valid membership of the Society. She had already made full payment of the Society within time and is fully entitled for allotment of a plot in Phase-III of the Society as similarly situated wait listed members of the Jagriti Nagar Cooperative Housing Building Society. Her seniority in the list of seniority of 104 wait listed members as per list already submitted by the undersigned is 83.” 6. We may also point out that the petitioner had applied for membership on 03.04.1984 and her membership had been cleared by the Managing Committee in its meeting held on 21.10.1984. The petitioner has throughout W.P. (C) No.3424/2007 Page 4 of 10 remained a member of the respondent no. 2 society since then. We may also point out that the question of residence in Delhi had not been raised at the time of grant of membership nor was it an issue when the Administrator (Mr. S.N. Aggarwal) had given his recommendation on 21.12.2005. 7. In the said report dated 26.10.2006, while considering the case of the petitioner, it has been noted that the only question to be decided was whether the petitioner was a resident of Delhi or not at the relevant time. The report indicates that the „relevant time‟ was construed as the time for application of membership and, that was in 1984. According to the said report, the petitioner was not a resident of Delhi and, therefore, she was ineligible to be a member of the society. The case of the petitioner has been discussed in detail in the said report and the finding is recorded in the following manner:- “Number 51 Smt. Madhu Goel (Membership No. 670) I have gone through the record carefully and I find that the reason given by Shri S.M. Aggarwal in his first order are very found and plausible and are based on the facts coming on the record to hold that this applicant was not resident of Delhi and thus was not eligible to become member of the Society. From the records, I find that this conclusion is well based and does not require to be changed. I hold that this applicant is not eligible to become member of the Society and her name has been wrongly recommended by the Administrator of the Society in his second order.” W.P. (C) No.3424/2007 Page 5 of 10 8. It has been contended by the learned counsel for the petitioner that the question of residence was not an issue at all which required consideration by Justice P.K. Bahri (Retd). 9. Secondly, he submitted that the petitioner could not have been regarded as a non-resident inasmuch as the petitioner appeared before Justice P.K. Bahri (Retd) on 31.08.2006 and thereafter submitted a detailed representation on 01.09.2006 to explain her case. It was stated by the petitioner that she was a resident of Delhi and had done her schooling from Delhi. It was further stated by the petitioner that she attained her degree in Bachelor of Arts from Miranda House, University of Delhi. At the time of making the application for membership the petitioner was residing at 3468, Nicholson Road, Kashmiri Gate, Delhi i.e., her parents house. The petitioner had shifted full time to Delhi in 1983 due to the disturbance in Punjab and lived at her parents‟ address thereafter for over three years. The petitioner‟s second son was born in Delhi on 03.05.1985 at St. Stephen Hospital during this three year period. In 1986 the petitioner along with her husband shifted from 3468, Nicholson Road to Paschim Vihar, also in Delhi. Therefore, in respect of the aforesaid facts, the learned counsel for the petitioner submitted that for all intents and purposes, the petitioner had to be regarded as a resident of Delhi. W.P. (C) No.3424/2007 Page 6 of 10 10. Thirdly, the learned counsel for the petitioner referred to the Circulars dated 16.12.1992, 24.02.1994 and 05.12.2001. Copies of the Notifications dated 05.12.2001 and 16.12.1992 have been placed at pages 148 and 149, respectively, of the paper book. The first Circular dated 16.12.1992 which has been issued by the Registrar of Cooperative Societies clearly indicates that cases which had been detained on account of requirement of proof of residence ought to be examined in the light of the decision of the Government of National Capital Territory of Delhi to discontinue the requirement. As regards the future also, it was indicated that the requirement of proof of residence in Delhi for clearance of membership would not be insisted upon. The said Circular dated 16.12.1992 was in respect of Cooperative Group Housing Societies. 11. The next Circular is that of 24.02.1994 (copy not placed in paper book) which is in connection with the objections raised by the office of the Registrar of Cooperative Societies in some cases on the point of proof of residence in Delhi for membership clearance in Cooperative Housing Societies. By virtue of the said Circular dated 24.02.1994, it was clarified that requirement of proof of residence has been dispensed with in the case of freeze list members of Cooperative Housing Building Societies. 12. The third Circular is of 05.12.2001 whereby there is a clear exemption issued by the Lieutenant Governor of the National Capital Territory of Delhi W.P. (C) No.3424/2007 Page 7 of 10 in exercise of his powers under section 88 of the Delhi Cooperative Societies Act, 1972 whereby exemption has been granted from the operation of the condition of Model Bye-Law No.5(1)(a) during the period 16.12.1992 to 22.04.1997 with regard to proof of residence in respect of members of Group Housing/House Building Societies. The matter, therefore, stands clarified that during the said period – 16.12.1992 to 22.04.1997, proof of residence was not necessary. In fact, the learned counsel for the petitioner submits that in all cases of membership prior to 22.04.1997, proof of residence had been virtually dispensed with. The petitioner‟s case was of a membership of 1984 and, therefore, the Circulars would squarely apply. 13. Fourthly, the learned counsel for the petitioner placed reliance on a decision of Division Bench of this court in the case of Hardeep Singh Sandhu v Registrar Coop. Societies & Others 41 (1990) DLT (SN) 29 as also in the case of Hardit Singh Sudan v Governor Delhi & Ors. In the said decision, it has been observed that the inquiry with regard to proof of residence should be considered at the time prior to enrolment of an applicant as a member. Having enrolled a person as a member, it would not be proper on the part of the society to go back on its earlier decision unless a case of fraud is put forth by the society. As in that case, so also in the present case, the learned counsel for the petitioner submits that there is no allegation of any fraud on the part of the petitioner and, therefore, once the membership W.P. (C) No.3424/2007 Page 8 of 10 has been granted by the Managing Committee as far back as in 1981, the society is precluded from going into the question of proof of residence. For all these reasons, the learned counsel for the petitioner submitted that the conclusion in the said report dated 26.10.2006 with regard to the petitioner ought to be quashed. 14. The learned counsel appearing for the respondent no.2 society which is now being run by an Administrator appointed by the Registrar of Cooperative Societies submits that, after the report of Justice Bahri (Retd), he has nothing further to say inasmuch as paragraph 12 of the order dated 01.05.2006 whereby the said report was necessitated, made it clear that the Registrar of Cooperative Societies would accept the list of members cleared by Justice Bahri without demur. The learned counsel submits that since the Administrator is a nominee of the Registrar of Cooperative Societies, he has been `tied down‟ to accept the said report. 15. On an examination of the circumstances as indicated above, we find that the requirement of proof of residence has been considered by Justice Bahri (Retd.) in his said report without referring to any of the three Circulars dated 16.12.1992, 24.02.1994 and 05.12.2001. Reading the Circulars together, the impression that we get is that prior to 22.04.1997, the requirement of proof of residence has been virtually dispensed with. The petitioner‟s case was pending clearance at the time said Circulars were W.P. (C) No.3424/2007 Page 9 of 10 issued and, therefore, the petitioner‟s case would be covered by the said Circulars. This aspect of the matter was not at all considered or brought to the notice of Justice P.K.Bahri when he prepared his report. In view of the said Circulars, it is clear that whether a person was residing in Delhi or outside Delhi became an irrelevant issue. This is categorically indicated in the Circular dated 24.02.1994. Of course, this situation would prevail in respect of memberships prior to 22.04.1997 and that, too, only those which had not been finalized. 16. This being the position, the finding in the said report that the petitioner was not cleared for allotment on the ground of not being a resident in Delhi cannot be sustained. Apart from this, on the facts of the present case also, we are of the view that the petitioner had not given up her status of being a resident in Delhi. 17. For the foregoing reasons, this writ petition is allowed. The impugned report dated 26.10.2006 to the extent it relates to the petitioner is set aside. Consequently, the respondent no.2 society is directed to immediately process the case of the petitioner for forwarding the same to the Registrar of Cooperative Societies for clearance from the Registrar so that the allotment can be got done through the DDA. This would, however, be subject to completion of all formalities by the petitioner. The petitioner shall complete the formalities within two weeks and the Administrator of the respondent W.P. (C) No.3424/2007 Page 10 of 10 no.2 society shall forward the same to the Registrar of Cooperative Societies for his clearance within two weeks thereafter. The Registrar shall also expeditiously forward the same for allotment to the DDA. The writ petition stands allowed to the aforesaid extent. BADAR DURREZ AHMED, J VEENA BIRBAL, J SEPTEMBER 14, 2009 kks