Case: Ishwar Nagar Coop House Building Society Vs. Parma Nand Sharma

1, Dr. Parmanand Sharma was enrolled as a member of the appellant society vide membership No. 35 on 11th March 1961. In 1968, he purchased a property bearing No.Kailash Colony, New Delhi in the name of his Hindu Undivided Family consisting ofhis wife and two minor children in 1968 and a structure was constructed thereon in 1969. According to thethis construction is anursing home, whereasclaims it to be only a nursing home, to which question we will refer later. In this chain of events, the membership of thewas terminated from the appellant society on the ground that theowned another property, i.e., 19/A, Kailash Colony, in Delhi, since as per rule 25 (1)(c) of the DelhiCooperative Societies Rules, 1973(hereinafter referred to as "the Rules" ), upon owning another property, the appellant was not entitled to be member of a Cooperative Housing Society. Thewas also expelled on 14th January 1978 from the society under section 36(1) of the Delhi Cooperative Societies Act, 1972 (hereinafter referred to as "the Act") for being a persistent defaulter, since he had not paid the dues demanded by the society. The action of the society expelling thewas approved by the Registrar, Cooperative Societies on 17th May 1978. On 26th February 1980, an application was filed byunder Section 60 of the Act for reference of dispute to arbitration. The reference was dismissed on 5th November, 1980. Being aggrieved, the respondent filed a writ petition before the High Court, wherein the High Court by the impugned judgment and order dated 28/03/2008 held that 19/A, Kailash Colony, Delhi was being used for running a nursing home, i.e., for a commercial purpose and therefore, that would not constitute a violation of Rule 25 of the Rules. By the said order, the HC set aside the expulsion orders.4. The present appeal is directed against the above impugned judgment and order of the High Court by way of Special Leave Petition on which we heard the counsel appearing for the parties at length. Thecounsel for theappellant contended that on the ground floor of the said property, theis running a nursing home and that he is residing on the first floor. In that view, the appellantcontended that theproperty was being used for residential purposes. Counsel for the appellant also submitted that thein his various correspondences, pleadings and affidavits has shown the property as his address which is conclusive proof that he is residing in the said property. Moreover, it was also contended thathad been unable to disclose where he was alternatively residing and no documents had been furnished to show that the said property was being used exclusively and solely for commercial purpose. In this regard, it was submitted that the user of the said property being a resident therein, this not only violates Rule 25 of the Rules, but also is contrary to the bye laws of the society and the terms of perpetual lease agreement entered between Govt. of India and the appellant society, in pursuance of which thewould be entitled as being member of theOn the other hand, thecounsel for therefuted the claims made by the appellant contending that the said property was used solely for a nursing home, and sinceremained in the nursing home for most of the time as a doctor, therefore it was solely for conveniences sake that he used the address to further correspondence. This aspect, it was submitted, would not render the property residential in any way. Further, counsel forcontended that thesaid property was purchased in the name of the HUF, and not inname, and therefore the latter cannot be expelled from the membership of theHe also submitted that thecannot be expelled because of purchase of the said property was facilitated before the Rules came into force in exercise of power granted under the Delhi Cooperative Societies Act, 1972. It was further contended that at the time of acquisition of membership of the said society, the appellants society was governed by the BombayCooperative Societies Act,which doesnt have any provision disqualifying a member of a cooperative society on acquisition of another property in Delhi. Rule 25 has no retrospective application; therefore it was submitted that expulsion of theis non est in law.

Reasoning:
11. In view of the above position, it may be deduced that the power to frame rules given under s. 97(1) of the Act is not controlled by the list mentioned in sub section (2) and the Lt. Governor can make rules for any of the purposes of the Act. Asociety may be defined as a voluntary association of individuals combined to achieve an improvement in their social and economic conditions through the common ownership and democratic management of the instruments of wealth. (Vide Rows Encyclopedia ofSocieties Law in India, Vol. 2, page 1) Experience has shown that voluntary organizations like cooperative societies are the best system which can suit the needs of poor and weaker sections. The object of asociety is not to earn profits but to enable the members to improve their economic conditions by helping them in their pursuits. Thus, the cooperative societies like the present one which seek to obtain the land at concessional rate from the government and to build houses must necessarily have a limitation in that only members who are in real need of houses should be permitted to become members and to take the benefit of land allotment. In the garb of a cooperative society, a person cannot be permitted to avoid the stress of market prices and take a concessional advantage in obtaining a plot. Thus Rule 25(2) does not in any manner go beyond the ambit of rule making authority given under Section 97(1) of theare of the considered opinion that the aforesaid contention of thecounsel for theis misconceived. Merely because a person who had become a member of the society at a point of time when the disqualification mentioned in Rule 25 was not in existence and because of the said rule would now cease to be a member of the society does not necessarily mean that the said rule is retrospective. "A statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time precedent to its passing". (See Craise on Statute Law. 17th edition page 386). Reference may also be made to Queen v. Vina reported at (1875) 10 Q.B 195 wherein the Statute enacted that every person convicted of felony shall be for ever disqualified from selling spirits by retail. It was held that the disqualification applied to every convicted felon irrespective of whether he was so convicted prior to or after the Act came intoThe most concrete cases wherein laws are made retrospective are those in which the date of commencement is earlier than enactment, or which validate some invalid law, otherwise, every statute affects rights which would have been in existence but for the statute and a statute does not become a retrospective one because a part of the requisition for its action is drawn from a time antecedent to its passing. Applying that to the present case, the conclusion is inescapable, that Rule 25(2) is not retrospective. All that Rule 25(2) does is that it operates in future, though the basis for taking action is the factum acquiring a plot in the past. Thus when by virtue of Rule 25(2), a member is deemed to have ceased to be a member of the society, the cessation operates from April 2, 1973, when the rules came into force.Perusal to abovemakes it clear that on purchasing a house or a plot of land for construction of a house, either in his own name or in name of any of his dependants, disqualifies a member of the society to continue as one. Bye laws of the society regulate the management of the society and govern the relationship between society and members inter se. They are of the nature of Articles of Association of a company registered under the Companies Act. If they are consistent with the Act and Rules, the members are bound by them.w 8(vii) was neither inconsistent with the BombayCooperative Societies Act,under which the appellant society was governed nor was it contrary to DelhiCooperative Societies Act,1972 and the Rules framed thereunder. Therefore, a member of the society who acted in violation of the said bye law was liable to have his or her membership removed from thewas only for the first time on 22.09.10 during the course of oral arguments thecounsel for theappellant raised the said violation as a surprise. On further investigation apart from the fact that the alleged 1962 bye laws were not part of the High Court file and the copy of the bye laws relied upon, it was contended, appears to be fabricated.20. If we accept the above contention ofand keep aside the alleged bye law 8(vii) from our consideration, bye law 5(i)(e) still remains to be considered, the existence of which is also not in doubt. The violation of said bye law 5(i)(e) was also communicated to theby show cause notice dated 24.1.1978 and also raised as a ground in the writ petition before the High Court and in the SLP filed before this Court. The said bye law 5(i)(e) is produced hereinunder:"5(i) Any person shall be eligible to be a member of the society, provided;(e) he or his wife (she or her husband incase of a woman) or any of his/her dependents does not own a dwelling house or a plot for building a house informer refers to the existence of state of affairs in present while the latter refers to the coming into existence of a new state of affairs. It is argued for thethat the 1962No. 5(i)(e) refers only to the eligibility of a person to become a member. On the contrary, the respondents have urged that even a person who is already a member ceases to be eligible to continue as a member if he does not satisfy5(i)(e). That is to say, if a person after becoming a member of the society purchased a dwelling house in Delhi, then he is not eligible to be a member in the sense that he is not eligible to continue to be a member of the society under the saidAs against the contention of theaw 5(i)(e) does not apply to existing members, it may be pointed out that in Article 102(1) of the Constitution also the word "be" is used in the sense of "exist" as contrasted to "become". Under Article 102(1) a person is disqualified for "being chosen as" and also for "being a member of either Houses of parliament" etc. The dichotomy there is between becoming a member and continuing to be a member of parliament. It is therefore, to be concluded that even under the 1962No. 5(i) (e) thewere disabled from continuing to be members of thehave considered these arguments in the light of the Rule 25.(1)(c)(i) of the rule 25 provides an exception in case of persons who are onlyin the joint family property, in that disqualification of membership as laid down in(l)(c)(i) shall not be applicable in case ofof property whose share is less than 66.72 sq. m. (80 yds) of land. In the present case, the said property is admeasuring 1080 yds and there are 3of the property, i.e.and his two children, (after the death of wife) and the share of thewould be more than the prescribed limit. In this regard, the aforesaid exception is not applicable to thecase. There is one more angle, which was specifically placed before us and requires our consideration. A perpetual lease deed with respect to the land allotted to the appellant society was executed on 06.04.1978 by the President of India through the Delhi Administration. A copy of the said perpetual lease deed executed with the appellant society is placed on record. Our specific attention was drawn to clause No. 5 (a) of the said lease deed, which reads asThe lease shall sublease within one year from the date of execution of these present, such time and on such premium and yearly rent as may be fixed by the lessor, one residential plot to each of its members who or whose wife/husband or any of his/her dependent relatives including unmarried children does not own, in full or in part, on freehold or leasehold bases, any residential plot or house in the urban areas of Delhi, New Delhi or Delhi cantonment, and who may be approved by the chiefappellant society was, therefore, under an obligation not to allot a residential plot to a person, who was owning a property in the city of Delhi. Therefore, as per terms of allotment of the land to the appellant it was obligatory for the society not to allot plots of land to such persons who own any residential property either in their own name or in the name of their family member. When the Hindu Undivided Family of the respondent consists only of his own family members, namely, his wife, son and the daughter and therefore obviously ownership of the said property by the Hindu Undivided Family of the respondent is ownership of property by the family members and consequently the same would clearly fall within the prohibition and bar of allotment as contained in clause No. 5 (a) of the leaselight of Rule 25, the action of thewould be justified if the said property is found to be residential house in the light of documents on record. The mere fact that thehas shown in affidavits and correspondences the said property as his address doesnt prove that the property is a residential house as being a doctor running a nursing home, he had to remain invariably in his workplace for very long hours. However, the Annexure13 are respectivelyproperty tax forms filled by thewith respect to the said property and an objection letter written by theagainst the assessment notice issued by the Municipal Corporation with respect to the said property. In Annexurewhile assessing the tax of the property, thehas shown the property as used for residential andpurpose only. In Annexureopposed the assessable value shown in the assessment notice on the ground that the building on the said plot is a new constructed building and is underfor residence and selfwork only and is ahouse. The respondent for the purpose of being member of thecannot claim the said property used purely for commercial purpose when he himself claimed the said property being used for residential purpose also. It should also be indicated that the aforesaid information about the nature and status of his property in Kailash Colony were furnished by the respondent under his own declaration and by certifying that the said particulars filled in the form are true and correct to the best of his knowledge. The respondent No. 1 has also appended his signature to the said declaration by signing it on 27/06/2006. These informations are relevant and material to come the conclusions that the aforesaid property in Kailash Colony was also used as a residential property and therefore the contention of thecounsel for therespondent no. 1 that it is exclusively a commercial property cannot be accepted.