$~ * % + IN THE HIGH COURT OF DELHI AT NEW DELHI PRONOUNCED ON:
07. 11.2016 RESERVED ON:
01. 03.2016 W.P. (C) 5785/2012, CM APPL.5172, 17009 & 27393/2015 versus NEERAJ JAIN THE REGISTRAR OF COOPERATIVE SOCIETIES THROUGH ITS AUTH OFFICER AND ORS W.P. (C) 6906/2012, CM APPL.6295/2014 ........ Petitioner
JAGBIR SINGH KALRA AND ORS REGISTRAR CO-OPERATIVE SOCIETIES AND ORS versus ........ Petitioner
s ........ RESPONDENTS
Appearance: Mr. Manoj Kumar Sharma with Mr. Yeeshu Jain, Ms. Jyoti Tyagi and Mr. Kapil, Advocates for petitioner nos.1&2 in W.P.(C) 5785/2012. Ms. Isha Khanna, proxy for Ms. Nidhi Raman, Advocate for Delhi Fire Service/Resp-13 in W.P.(C)5785/2012. Ms. Mini Pushkarna, Advocate for North DMC in W.P.(C)5785/2012. Mr. Akhilesh Arora, Advocate for petitioner nos.1, 4, 5, 7, 11, 13, 14, 15 & 18 in W.P.(C) 6906/2012. Mr. Hemant Chaudhri with Mr. Arjun Bhaskar, Advocates for petitioner no.2 in W.P.(C) 6906/2012. Mr. Fanish K. Jain, Advocate for petitioner nos.8&10 in W.P.(C) 6906/2012. Mr. Peeyoosh Kalra, Addl. Standing Counsel (Civil), GNCTD with Ms. Mahua Kalra, Advocate for Resp-1 in both matters. Mr. Arun Birbal, Advocate for DDA in W.P.(C)6906/2012. Mr. Shubham Puri, proxy for Mr. Gaurang Kanth, Advocate for Resp- 5 in W.P.(C)6906/2012. Mr. Manish Chauhan, proxy for Mr. V.K. Tandon, Advocate, along with Mr. G.S.Kohli, Administrator, in both matters. W.P.(C)5785/2012 & 6906/2012 Page 1 Ms. Suruchi Aggarwal, Advocate for respondents. Mr. Ashok Sharma, departmental representative on behalf of Chief Fire Officer, in both matters. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA S.RAVINDRA BHAT, J.
1. These two petitions seek common reliefs, i.e. a direction to the respondents to secure vacant physical possession of flats in illegal and unauthorized occupation in the Maitri Nagar Cooperative Group Housing Society Ltd., Plot No.29, Sector-9, Rohini, Delhi-85 [hereafter “the Society”]. and directions to settle the seniority list for allotment of flats in the society.
2. The facts briefly are that the society had enrolled several members. It constructed flats upon the land allotted to it by the Delhi Development Authority (DDA) in accordance with the procedure prescribed for the purpose by the Registrar Cooperative Societies [hereafter “the Registrar”].. On 10.08.1988, as on that point of time, there were 99 constructed flats in respect of which draw of lots was conducted for 69 flats. It is a matter of record that the Registrar did not conduct any other draw of lots in accordance with the prescribed or approved procedure. In the meanwhile, the Society had expelled about 22 members on various grounds. The provisions of the Delhi Cooperative Societies Rules ("the Rules") compelled approval of the Registrar for such expulsion. Again, it is a matter of record that on 16.08.1994, after hearing the parties, the Society and the expelled members, the Registrar directed the expulsion as unjustified and, therefore, without authority of law. The Financial Commissioner upheld the order of the Registrar and dismissed the revision proceedings. The office bearers of the W.P.(C)5785/2012 & 6906/2012 Page 2 Society at that time thought it appropriate to challenge the order disapproving the expulsion and the order of the Financial Commissioner; accordingly, the Society filed W.P.(C) 2890/1995. Another writ petition, i.e. W.P.(C) 5398/1997 was filed during the pendency of the society’s writ petition by one Savitri Jain [hereafter “Savitri”]., who had succeeded before the Registrar and the Financial Commissioner.
3. These writ petitions were pending in the Court for a long time. In the meanwhile, several individuals were inducted by the Society as members and given possession of flats. The procedure adopted was contrary to the prescribed one in that the Registrar was not a party to the allotment. For a valid allotment, the Society has to furnish a list of eligible members that requires verification by the Registrar after which the draw of lots is conducted in the presence of the Registrar or his nominee in the Society’s premises or other agreed premises and in the presence of the representative of the DDA. Flouting these norms, possession of 22 flats was given to the subsequently inducted members.
4. This Court, on 17.04.2009, by its judgment, upheld the order of the Registrar as confirmed by the Financial Commissioner, holding that the expulsion of 16 members was invalid. The Court also disposed of the pending writ petition filed by Savitri for the implementation of the Registrar’s order. Since the dismissal of that writ petition was inadvertent, the review proceedings initiated on 16.07.2010 [R.P.313-314/2009 (in W.P.(C) 5398/1997)]. was allowed. The Court directed that the said proceedings, i.e. W.P.(C) 5398/1997 should be heard in the normal course.
5. On 21.07.2010, the Court virtually allowed the claim in W.P.(C) 5398/1997 in the following terms: W.P.(C)5785/2012 & 6906/2012 Page 3 “The controversy arose on account of the expulsion of the petitioners as members of the respondent-Society which expulsion was held to be invalid in terms of the order dated 15.6.1994. This order was, however, impugned by the Society and the matter remained as it is as a consequence thereof. That writ petition, being WP (C) No.2890/1995, was dismissed on 17.4.2009. We are informed that the endeavour of certain members to seek review of that order also failed when the review applications were dismissed on 30.10.2009. The result is that the order dated 15.6.1994 stands confirmed by the judgement in WP (C) No.2890/1995. The next question which, thus, arises as to how this order is to be given effect to. In our considered view, there can be no doubt that in view of the restoration of the membership of the petitioners a fresh seniority list would have to be prepared as per the original membership. We are also informed that there is only one authentic draw of lots held under the supervision of DDA on 10.8.1988. The Registrar, Co-operative Societies to carry out the necessary exercise of drawing up of the seniority list within two (2) months from today and the current management of the Society will give all assistance. Needless to say that if the Society still does not give the requisite assistance, that aspect can be brought to the notice of the Court as it would amount to violation of our direction. On the fresh seniority list being prepared and it being worked out as to how many flats are available for allotment, the Registrar, Co-operative Societies will forward the necessary papers to the DDA for holding a draw of lots and the DDA will carry out the exercise within one (1) month thereafter. Needless to say that if any persons have been put in possession of any flats in the mean time contrary to the aforesaid seniority to surrender possession.” they would have list, W.P.(C)5785/2012 & 6906/2012 Page 4 6. Contempt proceedings were initiated by the erstwhile expelled members who had succeeded in W.P.(C) 5398/1997. On 15.11.2011, following directions were issued: to produce the members “The Registrar of Co-operative Societies was required to carry out the exercise of drawing up the seniority list within two months from the date of the order dated 21.07.2010 passed in W.P(C) 5398/1997. That has not been done. In another connected matter, i.e. Cont.Cas (C) No.250/211, the Registrar of Co-operative Societies is represented by Mr. Rajiv Nanda. He has filed an application seeking further two months time to prepare the seniority list. It is the case of the Registrar, that the society is not coming forward with the relevant records to enable the preparation of the seniority list. The Registrar has issued notices requiring their documents so as to enable the preparation of the seniority list. There are 99 flats in the society in question. The Court in its judgment dated 21.07.2010 has observed that one authentic draw of lots was held under the supervision of the DDA on 10.08.1988. In this process, I am informed, 69 flats were allotted to the members. By judgment dated 17.04.2009 delivered in W.P(C) 2890/1995, the Division Bench of this Court had upheld the membership of respondent nos.1 and 4 to 18 (sixteen, in all) in that writ petition. It is not in dispute that these 16 members were also originally registered as member of the society in question. The restoration of their membership would, therefore, relate back to their original date of enrolment. Since their membership has been restored, there is no question of the Registrar of Co-operative Societies seeking to verify their membership at this stage. These 16 members and the 69 members who were made allotments in the year 1988 by the DDA would rank senior to all others. The purpose of determining seniority of the members at this stage is to find out W.P.(C)5785/2012 & 6906/2012 Page 5 who, amongst the members, are first entitled to be considered for being accommodated in the society flats. There is no question of disturbing the seniority of the 69 members and the 16 members, as aforesaid. There inter se seniority is not necessary to be determined, as the number of flats in the society is 99, and they add up to 85. Determination of their inter se seniority would be an academic exercise with no purpose being served. The Registrar of Co-operative Societies is, therefore, not required to determine the inter se seniority of the 69 + 16 = 85 members, since their number, aggregating to 85, is less than the number of flats available for allotment i.e.
99. The question of drawing up the inter se seniority is relevant only qua the other members, apart from the said aforesaid 85 members. There is competition amongst them, as the members who rank senior from No.s 86 to 99 would be entitled to be considered for allotment. The Registrar of Co- operative Societies may now carry out the exercise only in relation to these other members, and not in relation to the aforesaid 85 members. The Administrator is directed to provide the relevant records to the Registrar of Co-operative Societies in relation to these other members. The other members (apart from the 85 members, as aforesaid) are also directed to co- operate with the Registrar of Co-operative Societies and produce the documents on which they wish to place reliance, to establish their inter se seniority. In case the documents are not produced by these members, the Registrar of Co-operative Societies may draw adverse inference. The seniority list be compiled positively within the next two months. List for compliance on 02.02.2012.” 7. The petitioners contend that despite the orders of the Court in W.P.(C) 5398/1997 and in the contempt proceedings, effective steps have not been taken to implement the court’s directions and rather the Registrar and all the authorities have dragged their feet, resultantly even though the petitioners’ membership and seniority have been restored, they have derived no W.P.(C)5785/2012 & 6906/2012 Page 6 advantage from it and those in illegal possession of the flats continue there. In these circumstances, it is urged that the Court should pass appropriate orders ensuring that vacant possession is handed to those entitled to it.
8. The petitioners concede that though their primary aim is to secure restitution and ensure that the flats, which should have been allotted to them - instead of which those premises were illegally given to those in possession, they had also sought for drawing of seniority and holding of fresh allotments; in addition they sought for direction to construct more flats. Learned counsel for the petitioners submit that though the society faced adverse orders for over 22 years and those orders were upheld more than 7 years ago, there has been no restitution; instead the previous orders of this court have shown an entirely different direction. The court has proceeded to issue directions to ensure additional constructions. Learned counsel submitted that after the filing of the petition, various verification exercises were conducted; in this process, out of the original 16 formerly expelled members, the details and papers relating to 5 could be verified; consequently, the number of members who succeeded before the registrar in 1994 is now only 5. In these circumstances, the seniority of those among the 22 members who are to make way can be worked out independently; the management should thereafter finalize arrangements to ensure that those who are to be evicted are in fact evicted.
9. The Registrar in his affidavit of 14.12.2012 does not dispute the necessary facts. The affidavit states that efforts have been made to ensure that a proper draw of lots is conducted after finalization of seniority list. It is also argued on behalf of the Registrar that in the meanwhile, this Court has made various orders to facilitate the construction of additional flats to W.P.(C)5785/2012 & 6906/2012 Page 7 accommodate the petitioners and also ensure that those occupying the existing flats without valid allotment can continue to do so and their existence regularized. The Registrar further states that: “The Answering Respondent was making efforts to prepare a seniority list so that the elections could be conducted and the elected Managing Committee would initiate steps regarding preparation of plans and seeking approval. Moreover, steps regarding preparation of plans and seeking approval, were not isolated steps and a holistic view of the issue had to be taken. Decision such as to who would bear the expenses of the cost of construction of additional flats could have been taken by the Managing Committee only, especially in view of the fact that as per the seniority list there were members who were senior but had not been allotted flats and there were others who were not recognized as members by the Answering respondent but had been occupying flats since last 22 years and had paid for the cost of construction. It may be mentioned that in compliance of the various orders passed by this Hon’ble Court from time to time, the Answering Respondent has forwarded the list of 91 eligible members to the DDA for holding lots on 18.10.2012. However, the Answering Respondent has not been able to prepare the list of flats for allotment or evict those members who are ineligible as per seniority because of the following reasons: a. Out of the 16 members eligible, the Answering Respondent has not received any response from 11 members, even though the Answering Respondent has issued letters from time to time requesting them for furnishing requisite documents and even after publication of the notice in the Hindustan Times in this regard. b. The 22 persons occupying the flats in the Society have paid for the land and construction of the flats and have been occupying the same for more than 20 years; W.P.(C)5785/2012 & 6906/2012 Page 8 c. It is admitted that additional flats can be built by the Society and since out of the 16 members eligible, no response has been received from 11 members, then it would require only few more flats to be built to satisfy all the existing members.” 10. Counsel for the Registrar also drew attention of the court to the order dated 06.05.2015, of this court, in the present proceedings, and submitted that the list required to be drawn for the purpose, has been in fact done; he relied on the affidavit filed in that regard, on 24th July 2015. The affidavit enclosed a list of five members who had to be accommodated, according to the category of their entitlement and the corresponding list of existing occupants, who had to make way and vacate their flats. Contentions of the newly added members 11. CM170092015 is filed on behalf of the members who were enrolled after the previous expulsion of 22 members (who have initiated the present writ proceeding), on the ground that they have been valid members for over 25 years. Counsel for such parties (hereafter called as "contesting respondents" or "later inducted members") highlights that the society had intimated the Registrar about the fact that they were enrolled, by a letter dated 02.03.1988; that list had clearly stated that their enrolment was in place of those whose membership had ceased (i.e. those who were expelled), i.e. 22 in number. These members had paid for the land value and the cost of the flat, and were given possession after a special draw held on 08.04.1990. The allotment for the previous lot of 69 took place pursuant to a draw of lots dated 10.08.1988. W.P.(C)5785/2012 & 6906/2012 Page 9 12. It was emphasized that though the orders upholding the decisions of the Registrar and the Financial Commissioner have achieved finality, because of the judgment of the Division Bench dated 17.04.2009, nevertheless, it cannot be ignored that these contesting respondents, inducted due to expulsion were neither rank outsiders; nor were they trespassers having no rights to the flats occupied by them. The Registrar was intimated about their induction. There was no objection to the induction, within 60 days. Furthermore the authorities were also informed about the special draw held in 1990 by the society. Since contesting respondents had fully paid for the flats, the restoration of seniority and membership to those subjected to illegal expulsion only meant that they had a right to be accommodated; they could not displace these contesting respondents of their flats, which they have been in valid occupation of for over 20 years. Counsel submitted that such consequences would be extremely harsh and grave. Furthermore, several of those later inducted members had moved on, by transferring their ownership rights, etc to others. Such developments signify irreversible changes. Instead, emphasized counsel, the correct thing would be to issue appropriate directions and ensure that the society constructs more flats to be given to the original members who are entitled to it.
13. Ms. Suruchi Agarwal, learned counsel, submitted that at the time of handing over of the possession to the contesting respondents the flats were in a semi-finished condition and not in a livable condition. The contesting respondents from time to time spent their hard earned money/savings to furnish their respective flats and made the flats allotted to them in a habitable condition. It was also argued that though the court upheld the decision of the W.P.(C)5785/2012 & 6906/2012 Page 10 registrar, not to approve the expulsion of 22 members, nevertheless, the membership and allotment of the other – later inducted members – was never declared irregular or illegal. If one kept in mind, this important fact, the decision in S.K. Gambhir v Union of India & Others (WP (C) No.1116/1984) is relevant. The court had ruled as follows:-
""17. As already observed above, a person become a members only when his application is accepted and noted before. This is true of the Institutions like Clubs, Associations, Limited Companies, and other similar bodies. It does not at all depend on the date of the payment of the money or the date of submission of the application form. This is the first principle on which the order of membership must be determined".
14. It was submitted that the exercise of determining seniority carried out by this court, in many previous orders, led to two lists, dated 18.10.2012 and 03.02.2014. These led to controversies; finally, the court had directed, by its order dated 06.05.2015 that "the RCS shall undertake the exercise of identifying the category wise seniority. positions of persons who have to make way for the petitioners in the respective categories. This exercise shall be completed by the-RCS within a period of eight Weeks from today."
15. It was urged that in view of these orders, it is imperative that before any restitutionary order, directing implementation of the previous writs is issued, the court ensures that a proper seniority of all the later inducted members is finalized in accordance with law and only those who are last in such list, are asked to hand over vacant possession. Nothing short of such procedure would be just or fair. W.P.(C)5785/2012 & 6906/2012 Page 11 16. Counsel for contesting respondents submitted that though they cannot dispute the membership and identity of the 16 (out of
22) individuals, the fact remains that as on date only five of them have been verified. Thus, the requirement to provide is only in respect of such five members- and four others, who have to pay current costs, because of the order in WP1062013. Counsel also relied on the order dated 19.03.1999 in WP24021998 where the court had directed some individuals to be included in the list of voters. It was stated that the court might issue appropriate directions to ensure that the rights of these contesting respondents are protected in the best possible manner while ensuring that justice is done to all and that the society should bear the responsibility as well. Analysis and Findings 17. The factual discussion in this case reveals that 22 members were expelled by the society. The Delhi Cooperative Societies Act and rules required approval of expulsion by the Registrar; he did not approve the expulsion; the Financial Commissioner affirmed the Registrar’s order in the revision proceedings. For 15 long years the society contested the issue of expulsion in a writ petition. Its challenge to the registrar's order was finally rebuffed by the judgment of this court of 17th April 2009. The operative portion of this court's order categorically ruled that the expulsion was illegal and more importantly that the expelled member's were entitled to be treated as continuing members with their original seniority intact. This can be seen by the judgment in WP28901995 (decided on 17th April, 2009) in Maitri Co-operative Group Housing Society v M.C. Jain & ors: “Under the circumstances, we find no merit in this writ petition. It is, W.P.(C)5785/2012 & 6906/2012 Page 12 accordingly, dismissed. Respondent Nos.l and.4 to 18 are held to be- continuing as members of the... Petitioner
society at all relevant times and the cessation of their membership is held to be not sustainable in law.” Necessarily this declaration meant that those who were kept out of their flats and who had a right to be reckoned when official allotment took place on 10th of August 1988 were in fact entitled to the flats but were unjustly denied its benefits. This is an important detail which should never be lost sight of because nowhere do the contesting respondents dispute the legality of the original members' claim to full membership rights - which comprehends the right to restoration not only of their membership but of allotment of a flat, of the category which they were entitled to and had opted for during the currency of that membership. That was restored by the judgment. At the point of time when the question of approval of expulsion was pending decision, details of such members and their particulars were known. However with passage of time 11 out of those 16 did not come forward to seek restoration and did not verify their documents. May be they lost interest-or equally may be they were tired out due to long pendency of litigation or maybe some of them died and their legal representatives are either not interested or not traceable. Nevertheless this court cannot ignore that circumstance as it only emphasizes the facts which underlines the tragedy that inevitably occurs during the long pendency of proceedings which dries up expectations and at times, drives people to despair.
18. Continuing the narrative, the present writ petitions were filed - in a sense, as a follow-up of the writ issued by this court and as a consequence of the finality attached to the decision that the expulsions were illegal. Some of W.P.(C)5785/2012 & 6906/2012 Page 13 the expelled members had not approached this court in a timely manner in 1995 or 1997 like in the case of Savitri Jain. However, when four of them approached later by filing a writ petition WP1062013, the court accepted their right and entitlement but at the same time stated that the delay by them had consequences: they were to bear the current cost of construction of the flats and could not be entitled to the benefit of allotment at the original cost 19. During the course of this proceeding, at the instance of the registrar and the society, verification of membership was carried out. This has led to definitive results - evident from the lists dated 18th October 2012 and 3rd February 2014: one is that the names of the 5 petitioners who were original members and are entitled to be accommodated by way of allotment to 2 different categories of flats. What remains, as a bone of contention is however, which of the newly added or inducted member's are to be asked to vacate and hand over possession of their flats?. Here the dispute seems endless. The newly added members especially those who feel threatened by being asked to leave, contend that the principle of seniority is not dependent upon the date of acceptance of amount but on the date when the society approves membership. Such newly added members and contesting respondents argue that on the date 22 new members were inducted, all of them ranked equally in seniority. They urge therefore that the list of 06.05.2015 is defective and that until the list of seniority for the purpose of verifying whose flat is to be vacated, is settled no action can be taken. They also argue that till the society in fact constructs new flats to make good the deficiency for all its members including those who will be made to vacate flats, actual eviction cannot take place. W.P.(C)5785/2012 & 6906/2012 Page 14 20. That this proceeding is essentially one for restitution is undeniable. The previous order of the court of 17th of April 2009 and the subsequent orders made in 2010 and 2011 have become final. Therefore it is not open to anyone to contend that the members who were expelled have the right to membership and no more. Anything short of possession of a flat, which should have been given to them in 1988, would not do. Therefore the question of such members - would today have dwindled, having to wait till the time that the municipal authorities and the Town Planner sanctions additional constructions and such constructions are completed, does not arise. In other words therefore the 7 years that the further proceedings have remained pending, itself results in further unjustness and unfairness to those whose membership and claims to seniority stand verified. The contesting respondents, who are later inducted members do not deny the undoubted seniority of these previously expelled members. Therefore the appropriate thing to do would be to ensure that such members who have survived out of the original of 22 expelled, are entitled to the flats at the earliest point of time. Each of the later added members, in occupation of flats allotted without a valid allotment in accordance with the established procedure, should vacate them. In other words, sequentially, the question of permission for construction, seniority of later added members etc. would not come first; it would come later. The first in the order of sequence would be to ensure that later added members vacate nine flats and the vacant flats are allotted - according to entitlement for the respective category to the 9 members who were unfairly expelled earlier. These petitions will have to be allowed with those directions. W.P.(C)5785/2012 & 6906/2012 Page 15 21. The next issue to be decided is what is the most appropriate method to be adopted in regard to the petitioner’s claim. First, the court has no difficulty rejecting the contesting respondents’ arguments that their possession should be undisturbed. These respondents were inducted against sub-judice vacancies when the expulsion of the petitioners and others had not really taken effect. This is because of Rule 36 of the Delhi Co-operative societies Rules. The said rules, which was in force at the relevant point of time, is as follows:
"36. Procedure for expulsion of members. (1) Notwithstanding anything contained in the bye-laws any member who has been presciently defaulting in payment of hi dues or the payment of claim made by a housing society for raising funds to fulfill its objects, has been failing to comply with the provisions of the bye- law regarding sales of his produce through the society or, other matter in connection with his dealings with the society or who, in the opinion of the committee, has brought disrepute to the society or he has done other acts detrimental to the interest of .proper working of the society, the society may by a resolution passed by a majority of not less than three fourth of the members entitled to vote who are present at a general meeting held for the purpose, expel a member from the society. Provided that no resolution shall be valid, unless that member concerned has been given an opportunity of representing his case to the general body and no resolution shall be effective, unless it is approved by the Registrar. (2) Where any member of a co-operative society proposes to bring a resolution for expulsion of any other member, he shall give a written notice thereof to the President of the Society. On receipt of such notice or when the committee itself decides to bring in such resolution, the consideration of such resolution shall be included in the agenda for the next general meeting and a notice thereof shall be given to the member against whom such resolution is proposed to be W.P.(C)5785/2012 & 6906/2012 Page 16 brought, calling upon him to be present at the general meeting, to be held not earlier than a period of one month from the date of such notice and to show cause against expulsion to the general body of members. After hearing the member, if present, or after taking into consideration any written representation, which he might have sent, the general body shall proceed to consider the resolution. (3) When a resolution passed in accordance with sub-rule (1) or (2) is sent to the Registrar or otherwise brought to his notice the Registrar may consider the resolution and after making such enquiry as to whether full and final opportunity has been given under sub- rules (1) or (2) give his approval and communicate the same to the society and the member concerned with in a period of 6 months. The resolution shall be effective from the date of approval. (4) Expulsion from membership may involve forfeiture of shares held by the member. The share shall be forfeited with the prior permission of the Registrar. In that event, the value of the share forfeited shall be credited to the reserve fund of the society. (5) No member of a co-operative society who has been expelled under the foregoing sub-rules shall be eligible for readmission as a member of that society or for admission as a member or any other society of the same class for a period of three years from the date of such expulsion. Provided that the Registrar may, on an application either by the society or the member expelled and in special circumstances, sanction the re-admission or admission, within the said period of any such member as a member of the said society or of any other society of the same class, as the case may be. Before giving such sanction for re-admission on admission by the Registrar, an opportunity of hearing may be given to both the society and member concerned."
22. The dictat of Rule 36 (3) that “The resolution shall be effective from the date of approval” is decisive and admits no debate; it is only if and only if, the registrar, after inquiry, approves the expulsion that it is effective. In this case, clearly the registrar did not so approve; the Financial Commissioner and this court confirmed that order concurrently. No principle W.P.(C)5785/2012 & 6906/2012 Page 17 embodied in any rule or statute was cited in support of the later inducted members’ argument that their membership - and later possession of the flats in their present occupation was nevertheless valid. Therefore, their memberships could never have been given primacy. In the light of this conclusion, the court holds that the contesting respondents’ rights to the flat are tenuous and have to yield to the legitimate rights of the petitioners and other reinstated members. Furthermore, these contesting respondents were also not subjected to the same allotment process as in the case of the original 69 members- verification of membership by the society, its due consideration and embodiment in the Registrar’s order, and subsequent allotment process under the supervision of the Registrar and DDA. These contesting or later inducted members therefore, can only claim some relief – if at all, based on long occupation, not premised on equity. Certainly it is not the kind of equity, of which restitution is prominent.
23. The cornerstone of the contesting respondents’ argument is their inter se seniority and its determination. To our mind, that issue is subsidiary. Having concluded that the petitioners and those like them have primacy in regard to the flats, which were never allotted validly to the contesting respondents, the court’s effort primarily is to secure their possession to these aggrieved parties. The consequent inconvenience is to be addressed differently. The previous orders of this court have shown that the primary focus of the litigation meandered to the construction of additional flats, needed directions to the authorities for the purpose, etc. Along the line, the inter se seniority of the contesting respondents got twined with that issue. However, during the hearing, the court had expressed its opinion that since W.P.(C)5785/2012 & 6906/2012 Page 18 the identity and verification of the five expelled members is known (as well as the other 4 members, who were given relief, but of a different kind, subject to payment of current costs (those in WP1062013)) it would be just and fair that nine individuals among the contesting respondents vacate their flats and their flats are allotted to the erstwhile expelled members. To determine which among the 22 individuals are to vacate the flats, the court is of opinion that since almost all of them applied together and were granted membership, it would be fair that they are placed at the same footing. The appropriate procedure would be in such case to hold a draw for the erstwhile members, to first decide which of them should secure flats of the category of their entitlement. This draw would determine in turn, which nine out of the 22 existing occupants have to vacate their flats, according to the categories of entitlement of the erstwhile-expelled members. The DDA and Registrar would carry out the exercise of holding a draw of lots for allotment flats to be vacated by later entrants. The second step - to be simultaneously carried out - would be to ensure that the cost of the 9 flats are recovered from all the newly or subsequently added/inducted members. This is essential, because if they are to salvage their rights, the entire burden of cost for the additional construction cannot be placed on those asked to vacate their flats, but on all the newly added members. Of course, the current cost of construction is to be recovered for four additional flats, from the petitioners in WP1062013.
24. The pleadings in the contesting respondents' application and affidavits - as well as documents enclosed thereto, show that some controversy is made in respect of transferees of the newly added members (about 6). The newly added members argue that such power of attorney holders are not really W.P.(C)5785/2012 & 6906/2012 Page 19 members and that their names should be at the bottom of the list; it is urged that they should first make way for the original members whose expulsion was not approved. This court is of opinion that this distinction is unfounded. The newly added members could not have been inducted without proper approval; as long as proceedings for approval of expulsion were pending, their induction was not only unwarranted, but without legal authorization. That some of them were given possession and have occupied the flats for a long time is purely fortuitous, given the vicissitudes of litigation in the country and the attendant delay in deciding cases. However, the transferees of some of those inducted members are blameless; they cannot be singled out for the purpose of eviction. Therefore, it is held that subsequent transferees (said to be
6) stand on the same footing as all the newly inducted 22 members.
25. This Court is of opinion that the formerly expelled members are to be handed over the flats, which shall be vacated by the nine newly added members. Further, all the newly inducted members should bear the cost of construction of nine additional flats and the additional funding towards extra costs at 2013 rates are to be borne by the four petitioners in WP (C) 106/2013. In the light of this, the following directions are hereby issued: (a) A draw shall be held within four weeks from the date the 26 members deposit the money as per direction (c) under the supervision of the Registrar of Cooperative Society and DDA. We direct that instead of getting all the 22 flats vacated before allotment to 9 members, the flat numbers of the 22 newly added members only shall be included in the draw of lots: of these the appropriate categories of flats (12 in the Higher Income group (HIG) and 10 W.P.(C)5785/2012 & 6906/2012 Page 20 in the Lower income group-LIG), according to entitlement of the nine previously expelled members, shall be allotted. (b) This draw shall determine the flat numbers of the nine flats to be allotted to the erstwhile-expelled members from the appropriate categories (i.e. HIG and LIG). The occupants of flats so allotted/chosen, (i.e. the present occupants of nine flats in the appropriate categories, from the 22 newly added members) shall, vacate their flats within six months from the date of this order so as to facilitate the handing over of these flats to the nine members to whom the flats stand allotted as per the draw of lots. (c) Before the conduct of the draw of lots, each of the 22 said individuals and the four erstwhile members, (who had filed WP (C) 106/2013) - i.e. 26 individuals shall deposit `4,50,000/- within three months from today, with the Administrator/Registrar. This amount shall be kept in a separate deposit, to be exclusively used for construction of 9 additional flats to be allotted according to the appropriate category, amongst the 9 evicted individuals. Any shortfall in the amount required for construction, shall be borne by the four erstwhile members, (who had WP (C) 106/2013) in equal shares and in case of surplus money, the same shall be equally distributed amongst the four petitioners of W.P.(C) No.106/2013. This would result in balancing the equities and complying with the order in WP1062013. The flats so constructed shall simulate and be identical to the flats originally allotted by the society to its members, i.e., as per the old sanctioned plan of the Society of HIG and LIG flats. In case any of the 22 members currently occupying the flats fail to deposit the money within the stipulated period, their flat/flats shall be considered vacant and Society shall immediately take vacant W.P.(C)5785/2012 & 6906/2012 Page 21 possession of the same. In case any of the petitioners in W.P.(C) No.106/2013, fail to comply with this order, they shall stand debarred from participating in the draw. (d) The Administrator/society shall contemporaneously take up the issue of building of 9 additional flats, with the concerned Municipal Corporation, which is directed to decide the application having regard to building norms applicable in that regard, sanction necessary plans etc. in accordance with law within the next 4 months. While carrying out such exercise, the society as well as the Municipal Corporation shall keep in mind that the final sanctioned plans shall be identical to that of the other flats in the society. (e) Upon completion of construction of the nine additional flats another draw similar to the one indicated in direction (a) shall be conducted to ensure that allotment is made thereof, to the 9 evicted individuals as per the category of flats, they were occupying before eviction.
26. The writ petitions are allowed in terms of the above directions. No costs. NOVEMBER7, 2016 S. RAVINDRA BHAT (JUDGE) DEEPA SHARMA (JUDGE) W.P.(C)5785/2012 & 6906/2012 Page 22