$~ * % + IN THE HIGH COURT OF DELHI AT NEW DELHI PRONOUNCED ON:
10. 11.2016 RESERVED ON:
02. 05.2016 Review Petition No.182/2016, CM Nos.13218/2016, 13219/2016 & 13220/2016 & Review Petition No.212/2016, 15684/2016, 15685/2016, 15686/2016 & 15687/2016 IN W.P.(C) 7227/2013 SUBHASH KWATRA ..... Appellants Through: Mr. Rajesh Goswami with Ms. Anita Goswami, Advocates for review petitioner in Review Petition No.182/2016. Mr. V.V. Manoharan with Mr. Awanish Kumar, Advocate for review petitioner in Review Petition No.212/2016. Versus REGISTRAR OF CO-OPERATIVE SOCIETIES & ORS. ........ RESPONDENTS
Through: Mr. Rahul Sharma with Mr. Ankit Roy, Advocates for R-1. Mr. Nikhil Goel with Mr. Ashutosh Ghade, Advocates for Resp-3/DDA. Review Petition No.175/2016 IN W.P.(C) 495/2007 SUBHASH KWATRA ..... Appellants Through: Mr. Anil Amrit with Mr. Ninand Laud, Mr. Jayant Mohan and Mr. Subas Acharya, Advocates for review petitioners in Review Petition No.175/2017. Versus REGISTRAR OF CO-OPERATIVE SOCIETIES ........ RESPONDENTS
Through: Mr. Rahul Sharma with Mr. Ankit Roy, R.P. Nos.182, 212 & 175/2016 Page 1 Advocates for R-1. Ms. Shobhna Takiar with Mr. Udyan Khandelwal, Advocates for DDA. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA S.RAVINDRA BHAT, J.
1. These two review petitioners seek relief in respect of the directions issued by this Court while disposing of W.P.(C)7227/2013 on 23.02.2016. The review petitioners as well as the parties who had preferred applications when the writ petition was pending were heard and orders reserved.
2. The previous history of litigation and various orders of Court were noticed in the final judgment of 23.02.2016 whereby directions were issued to the respondent authorities in respect of 29 flats that had been occupied by unauthorized individuals. The Court had, based upon the previous orders in various proceedings concluded that the possession of those flats was never based on any lawful allotment involving the Registrar, Cooperative Societies or the DDA. In the circumstances, the writ petition was allowed in terms of the following directions: -
"1. The respondent authorities, especially the Registrar of Cooperative Societies takes appropriate steps to evict the 29 unauthorised occupants whose possession is plainly unlawful. (2) This process shall be completed at the earliest and in any event not later than eight weeks from today. If necessary, the Registrar shall seek the assistance of all authorities including the Delhi Police in ensuring that the process is complete. (3) Within six weeks of completion of the steps indicated in No.1 above, the DDA and RCS shall ensure that the names of the present petitioners-and all other individuals while like them (whose names are mentioned in Annexure 2 to the affidavit of Sh. Jitender Kumar R.P. Nos.182, 212 & 175/2016 Page 2 Singh, Assistant Registrar of August 2012 in W.P.(C) No.7227/2013) and all others placed similarly are included in the draw- of-lots. (4) the respondents shall ensure that based upon the results of the draw-of-lots, the possession of the flats allotted to those successful in the draw - of- lots are handed over within four months from today.” 3. Both review petitioners expressed a common grievance. Learned counsel for the review petitioner in R.P.182/2016 states that Mr. Kapil Kishan Malhotra (K.K. Malhotra) who was the original member was allotted Flat No.D-403 and pursuant to such allotment, further steps such as execution of formal documents had taken place. He relies upon the inspection report of the concerned officer in compliance with the directions of the Court in W.P.(C)495/2007 dated 6.8.2010. This review petitioner also relies upon the order of the Court made in that regard on 29.10.2010. The said order reads as follows: - “The administrator has filed an inspection report in the Court. It transpires that while allotting 163 flats as noted in our order dated 06.08.2010, the DDA appears to have made a double allotment in two cases. Thus two persons did not take possession of two additional flats and actually 161 flats were allotted in pursuance to the draw of lots held by the DDA. The result of this is that there were, in fact, not 29 but 31 flats stated to be allotted by the Managing Committee. Simultaneously, it has been brought to our notice that actually 5 occupants out of 29 flats were, in fact, validly allotted flats. It is also stated that there are seven other allotments made by the Managing Committee against these 5+2 flats. The administrator states that thus the number ultimately comes to 31 flats which have been allotted by the Managing Committee without a draw of lots being held by the DDA. Learned counsel for R-1/RCS states that as per the information so far derived from records, there are 15 persons including the petitioners who have awards in their favour and who would be entitled to flats. R.P. Nos.182, 212 & 175/2016 Page 3 Apart from this, there are proceedings pending in respect of the claims by some other members also, which are yet to be finalized. The details are sought to be compiled after verification from the office of the Registrar”. It is stated that despite due allotment, the society’s records contained an error inasmuch as the flat was shown to be vacant. The Inspecting Officer’s report had clearly stated that Shri K.K. Malhotra, the original allottee was duly allotted flat no.D-403. The observations of the report of Shri D.D. Sharma, Administrator in compliance of this Court’s directions to the extent they are relevant are extracted from the record: - “Flat No.D-403 had been mentioned by D.D.A. in the list of 29 un- allotted Flats whereas it was already allotted to Sh. Kapil Kishan Malhotra (M.S. No.286) in 1st draw and occupied by him.” It is contended, therefore, that the present occupant,i.e., the review petitioner Shri Himanshu Aggarwal is a transferee and legitimately entitled to continue in possession - as an owner of the said flat, i.e., D-403.
4. In R.P.212/2016, a similar argument is addressed on behalf of Mr. Vinod Kumar Wahi. He relies upon previous proceeding (i.e. Vinod Kumar Wahi v. Registrar, Cooperative Societies W.P.(C)2598/2002 disposed of on 13.04.2005). In that writ petition, Shri Wahi, the present review petitioner had contended that he was original allottee of flat No.F-301 and a bona fide member of the respondent society since 1982 with membership no.184. He has filed copies of all the receipts evidencing various amounts paid to the society from time to time based upon its demands. In the writ petition Shri Wahi had complained that his name was wrongly withheld from the draw of lots and, therefore, he could not be allotted any flat when the draw took place sometime in December, 2001. The Court had by its interim order dated 8.5.2002 in W.P.(C)2598/2002 directed one flat to be reserved in favour of said Shri Wahi. The review petitioner Shri Wahi R.P. Nos.182, 212 & 175/2016 Page 4 also relies upon the reply of the Registrar which does not dispute his membership and furthermore relies upon the order of the Court dated 13.04.2005 recording that Shri Wahi had been allotted Flat No.F-301 after due verification by the Society and possession was handed over to him on 17.07.2005. It is stated that in these circumstances, the Registrar of Cooperative Societies was under a duty to disclose the correct facts and protect the interests of Shri Wahi as Member of the Society and not expose him to the possibility of eviction. It is, therefore, stated that the list of unalloted flats cannot include F-301 (category-B).
5. Some of the occupants who are in possession of the flats and are facing eviction urged that this Court should recall and modify its order. It is argued on their behalf by Mr. Anil Amrit that they had paid the amounts due and were given membership by the Society and should be considered as legitimate and regular members. It was urged that in any case having regard to the length of their occupancy, the Court should permit their occupation in the flat till additional flats are constructed and their proper draw of lots held, to accommodate them. In the alternative, it was urged that in any event, the time given to them to vacate the premises is too short and the Court should extend the period in that regard.
6. As far as the review petitioners’ submissions are concerned, the previous orders of the Court especially the one dated 29.10.2010 clearly shows that flats involved were 31 in numbers and that 7 of them had been allotted to legitimate and regular members. The records clearly show that the predecessor of Mr. Himanshu Aggarwal, one of the review petitioners in R.P.182/2016, was Shri K.K. Malhotra. The inspection report clearly bears out that Mr. Malhotra was an original Member and had been allotted Flat No.D-403. Likewise in Shri Wahi’s case (in R.P.212/2016) too, the record speaks of his having approached the Court earlier in W.P.(C)2598/2002; the Registrar did not dispute his claim. The documents placed on record by him show that at all material time he was, right from the inception, a member of the respondent society. As a consequence of the R.P. Nos.182, 212 & 175/2016 Page 5 wrongful exclusion of his name from the draw of lots, he approached the Court which ultimately resulted in flat no.F-301 being handed over to him. During the hearing, the respondent, i.e., the Registrar and the Society did not dispute the correctness of these facts.
7. In the light of these developments, the main judgment of this Court dated 23.02.2016 is hereby reviewed to the extent that the flats under occupation of the said two individuals, i.e., Himanshu Aggarwal (transferee/deriving title from the original member K.K. Malhotra) and Shri Vinod Kumar Wahi - presently occupying D-403 (Category A) and F-301 (Category B) respectively shall not be included in the list of occupants (who are to be evicted) and shall not be included in the list of flats which shall be vacated.
8. As far as the submissions of the other parties, i.e., other members to be evicted are concerned, the Court sees no justification or rationale to review its directions. The final judgment itself would show that the matter with respect to legitimacy or occupation of the 29 flats was pending consideration from 2004; on 17.08.2009 those petitions were disposed of; even the review petitions were rejected later. The Court had noticed another previous Petition - W.P.(C)495/2007 and various orders made from time to time in that case as well as the order dated 29.10.2010. The legality of the possession of subsequent occupants - who were given the flat after the draw of lots in the 163 built up flats - was, therefore, held to be unlawful.
9. Having regard to the findings which are based upon a series of previous orders, the Court sees no reason to disturb the final directions in its main judgment of 23.02.2016.
10. The review petitions - R.P.No.182/2016 & 212/2016 are allowed to the extent that the occupants in Flat Nos.D-403 (allotted to the original member Shri K.K. Malhotra) and F-301 (Category B allotted to Shri Vinod Kumar Wahi) shall not be evicted and their names shall not be included in the list of occupants who R.P. Nos.182, 212 & 175/2016 Page 6 are to be asked to vacate from the premises.
11. The review petition nos.182 & 212/2016 in W.P.(C)7227/2013 are accordingly allowed to the above extent and review petition no.175/2016 in W.P.(C)495/2007 is dismissed. S. RAVINDRA BHAT (JUDGE) DEEPA SHARMA (JUDGE) NOVEMBER10 2016 R.P. Nos.182, 212 & 175/2016 Page 7