W.P. (C) No.1904/2008 Page 1 of 11 THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on : 02.09.2009 % Judgment delivered on: 14.09.2009 + W.P.(C) 1904/2008 NARESH KUMAR GUPTA ..... 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. 1 society (Jagriti Nagar Cooperative House Building Society Ltd). W.P. (C) No.1904/2008 Page 2 of 11 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 W.P. (C) No.1904/2008 Page 3 of 11 insofar as the 51 persons were concerned, the learned Single Judge by his order 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 already recommended the petitioner‟s case for allotment vide recommendation dated 25.02.2005. A copy of the said recommendation has been filed at page 30 of the paper book. It is observed in the said recommendation as under:- “I am, therefore, of the considered opinion that the ex-parte Expulsion Resolution dated 26.09.2002 recorded by my learned predecessor and the ex- parte approval accorded by the learned Registrar on 02.04.2003 should be revoked and Shri Naresh Kumar Gupta should be re-admitted as member as stipulated in the proviso to clause 5 of Rule 36 of DCS Rules. Shri Naresh Kumar Gupta has agreed to pay full balance demand with interest @ 24% as stipulated under Rule 36-A of (1) (d) which otherwise was to be charged only at the rate of 18% p.a. as per Rule 36-A (1) (c) the name of Shri Naresh Kumar Gupta is being recommended for allotment of plot in the composite 17 column W.P. (C) No.1904/2008 Page 4 of 11 proforma being sent by the undersigned for all the waitlisted members.” 6. We may also point out that the petitioner had applied for membership on 14.04.1984 and his membership had been cleared by the Managing Committee in its meeting in 1985. The petitioner has throughout remained a member of the respondent no. 1 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. 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, he was ineligible to be a member of the society. The case of the petitioner has been mentioned in the said report in the following manner:- “Number 1 Shri Naresh Kumar Gupta (Membership No. 651) Sh. N.K. Gupta gave an application dated 14th April, 1984 for becoming member and paid the share money on 2nd May, 1985. Although, the Managing W.P. (C) No.1904/2008 Page 5 of 11 Committee approved his membership on 21st October, 1984. In the application along with affidavit filed he has shown himself to be the resident of 831/5 Paharganj, New Delhi – 011085. He did not file any document before the Society showing that he was resident of the said place at the time he became member. In his affidavit dated 14th April, 1984 he mentioned that he was carrying on business independently. In his affidavit dated 12th August, 1985, he mentioned that he has been working with Viz & Company, Chartered Accountant Paharganj since 1983. He has filed a copy of the ration card dated 27th July, 1988 which shows that one Mr. Suresh Chand Goel is the head of the family and address is given 1 Arya Samaj Mandir, Press Road, New Delhi. The records of the Society show that many notices sent at that address came back undelivered as no such person was found there. Sh. Manish Kumar, secretary of the Society visited the said place and made a report that same is Arya Samaj Temple and Pujari of the temple informed that no person of name Sh. N.K. Gupta was residing at that place. It is also significant to mention that he himself had given a letter dated 18th August, 1987 wherein he mentioned that he has shifted to new address at 1 Arya Samaj Mandir, New Delhi. I recorded the statement of Mr. N.K. Gupta. He disclosed that he completed his Chartered Accountancy in 1984 and took employment with Mehra Goel & Company, Kashmere Gate where he worked up to 1978 and thereafter with S.N.Vij & Company in Paharganj (Multani Dhanda) where he worked up to 1985. He deposed that he took on rent one room in House No.8277/5 Multani Dhanda, Paharganj from Mr. Som Nath Vij and he stayed in that house upto 1985-1986. He categorically stated that he did not remember any house No. 1 Arya Samaj Road which address he had given in his affidavit dated 18th September, 1987. He also disclosed that he had opened an account in Punjab National Bank. It came out in the statement that he was married in the year 1978 and three children were born in between 1978 to 1982 and his children and wife always stayed in Ferozpur. There is hardly any satisfactory evidence placed by him on record showing that he had resided in Delhi and particularly during the relevant period when he gave application. W.P. (C) No.1904/2008 Page 6 of 11 He was directed to file documents showing that he worked in the said firms mentioned by him, if so for what period and that he lived in Delhi in the relevant period in shape of voter list and or any proper ration card of the place mentioned in his application. He was required to send any document in that regard. He also admitted that he must have given his residential address in the Association of the Chartered Accountant and was asked to send documents in that regard. He has not sent any document. It is also pertinent to mention that in the copy of the ration card of the year 1988 of the address of 1 Arya Samaj Mandir Road his name appeared at the serial No. 6, but no father‟s name or relationship with the head of the family stand indicated. It is very difficult to link the ration card with the identity of this applicant. Moreover, if he had lived in that place he could not have forgotten the same when specific question was put to him about that place. It is also significant to mention that in his verification certificate his business address is shown as 8315/5 Multani Dhanda Paharganj which is same address as given by him in his application. There is nothing to show on the record what sort of office he is having even now at the said address. In absence of any convincing evidence on the record showing that this applicant was resident of Delhi at the relevant time. I am constrained to hold that he was not resident of Delhi at the relevant time and thus was not eligible to become member of the Society. I hold that his name has been wrongly recommended by the Society.” 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 had submitted proof that he had been working with M/s Vij & Co. Chartered Accountants, Pahar Ganj since 1983. He had also filed the copy of W.P. (C) No.1904/2008 Page 7 of 11 the Ration card dated 27.07.1988 which showed that he lived in Delhi. The aforesaid documents ought to have been relied upon and considered by Justice P.K. Bahri (Retd) while deciding the case of the petitioner. Thus, in view of the aforesaid facts, it was submitted hat for all intents and purposes the petitioner had to be regarded as a resident of Delhi. 10. Thirdly, the learned counsel for the petitioner referred to the Circulars dated 16.12.1992, 24.02.1994 and 05.12.2001 copies whereof have been placed at pages 47, 48 and 49 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 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 W.P. (C) No.1904/2008 Page 8 of 11 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 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 1985 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 W.P. (C) No.1904/2008 Page 9 of 11 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 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.1 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. W.P. (C) No.1904/2008 Page 10 of 11 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 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 is a resident of Delhi. On this ground also, the report insofar as the petitioner is concerned, is liable to be set aside. W.P. (C) No.1904/2008 Page 11 of 11 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.1 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 no.1 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