$~7. * + IN THE HIGH COURT OF DELHI AT NEW DELHI WRIT PETITION(CIVIL) No.7975/2013 Date of decision:
18. h November, 2016 KHUSHAL SINGH ........ Petitioner
Through Mr. Vinayak Mehrotra, Advocate. versus REGISTRAR OF COOPERATIVE SOCIETIES & ANR……Respondents Through Mr. Santosh Kumar Tripathi, ASC & Mr. Rizwan, Advocate for respondent No.1 alongwith Mr. Jitendra Kumar Singh, AR (RCS). Mr. B. Gopinathan, Secretary and authorised representative of respondent No.2, in person. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE CHANDER SHEKHAR SANJIV KHANNA, J.
(ORAL) The petitioner- Khushal Singh, aged 75 years, is a retired school principal. He was enrolled as a member of the Daffodils Cooperative Group Housing Society Ltd., respondent No.2 herein, in the meeting of the Management Committee held on 30.09.2000. By letter dated 13.11.2000, the petitioner was informed of the schedule of payment for the cost of flat. By 20.04.2001 the petitioner had paid the entire cost of Rs. 11,33,536/- by way of 10 account payees cheques.
2. The petitioner impugns the order dated 20.06.2013 whereby the office of the Registrar, Cooperative Societies, respondent No.1 herein, has refused to grant approval of membership of the petitioner in the respondent No.2 Society. The reason being that the petitioner does not meet the requirement of being a resident of Delhi for 3 years prior to his enrolment as a member.
3. The stand of the respondent No.2- Cooperative Society is that W.P. (C) No.7975/2013 Page 1 of 11 although a vacant flat is available for allotment to the petitioner, the same cannot be allotted in view of non- approval of membership of the petitioner by the Registrar, Cooperative Societies. Thus, the petitioner, despite being a duly enrolled member and having made the full payment for the flat in 2001, has been knocked down after 12 years.
4. Before we refer to the facts relevant to decide the short and limited controversy, we note that it is an accepted case of the parties that the petitioner satisfies all but one requirement for approval of membership in the respondent No.2 Cooperative Society. The dispute pertains to the proof of residence of the petitioner.
5. We begin by referring to the correspondence exchanged between the respondent Society and the Registrar, Cooperative Societies. As stated above, the petitioner was enrolled as a member of the respondent No.2 Cooperative Society on 30.09.2000 By their letter dated 5.07.2001, the respondent No.2 Cooperative Society had forwarded the case of the petitioner for approval of the Registrar, Cooperative Societies. The Registrar, Cooperative Societies in their letter dated 10.08.2001 required the respondent No.2 Cooperative Society to finish certain documents and information for processing the case of the petitioner, including documents to prove residence in Delhi for a period of three years prior to enrolment as a member. Apparently, the petitioner and cooperative society were unaware of the said requirements.
6. The petitioner had then furnished a copy of the lease deed dated 22.6.2001 executed by the landlord-owner of A-67, Swasthya Vihar, New Delhi, acknowledging the petitioner as the tenant of the said property where he had been residing with his daughter. The petitioner had also enclosed a copy of the property tax paid by the landlord as well as a copy of the certificate issued by Kashi Nath Mishra, Deputy Director, who had certified that he had known the petitioner for six years and that the W.P. (C) No.7975/2013 Page 2 of 11 petitioner had been residing at A-67, Swasthya Vihar, Delhi for the last six years. In response to the aforesaid papers, the Registrar, Cooperative Societies had written letter dated 22.03.2005 asking for clarification regarding validity of the identity card of Kashi Nath Mishra, Deputy Director. The said position was clarified and the necessary documents were provided by the respondent No.2 Society vide letter dated 04.12.
2005. 7. Having received no response from the respondents, the petitioner had written a detailed letter dated 14.09.2009 to the Registrar, Cooperative Societies. The relevant portion of the said letter pertaining to proof of residence has been extracted below:-
"Probably, my case “5. is now pending for clarification of my residence proof. In past, I have already submitted many documents in this regard to your office, details of some of them are as follows. (i) I enclosed my (sic) lease agreement with my landlord Shri Hardaljeet Singh, along with my initial application. (ii) I have also enclosed a photocopy of a cheque by which he made his payment of tax to Municipal Corporation of Delhi, along with receipt of payment of Municipal Tax. (iii) Thereafter, I also enclosed an affidavit of my landlord as well as my affidavit, along with the letter of the Society letter of 10th August 2001 was received in your office on 12th Nov 2002. (iv) I also submitted a verification form, verified by Shri K.N. Mishra, Deputy Director. In para 4 of this verification form, details of my present address A-67, Swasthya Vihar, Delhi is also given. (v) I also submitted an Affidavit dated 25 Jan 2005, giving details of present address, details of my bank account (Bank account no 13011, with Bank of Maharashtra, at UPSC Counter New Delhi 110001) and my present residential address. I am again enclosing a copy of this affidavit, with this letter. W.P. (C) No.7975/2013 Page 3 of 11 I am enclosing Additional Documents/Facts for the Residential proof 6. For the period from Nov 2002 to May 2006, your office was fully satisfied with my documents relating to my residence proofs, as there was no query to this effect from your side. Notwithstanding this, the under-mentioned clarifications/documents for early clearance of my case. a) I am again enclosing an Affidavit of my landlord Sheri (sic)Hardaljeet Singh, giving an undertaking that I am staying in his house for last 12 years. b) As mentioned above, I am having a bank account in Delhi and I have made due payments to the society through 10 account payee cheques from my Bank account no 13011, with Bank of Maharashtra, at UPSC Counter New Delhi 110001. The first cheque to the Society was issued on 05 Dec 2000 and last was dated 20 April 2001. I am enclosing photocopies of receipt of these two cheques. c) My elder daughter Sangita Fauzdar, like our other members of my family was staying with me at A-67, Swasthya Vihar, Delhi since February 1996 to Feb 2001, when she got married. She was doing a job with the BEST Technologies, a Noida based Software company during this period. A certificate of her employer to this effect is enclosed for reference. d) My elder son Rahul Singh, is also staying with me A-67, Swasthya Vihar, Delhi and is working with the M/S Texico, Travel Services, 1 CSC Market, Defence Enclave Delhi since Sep 1999. A certificate to this effect, from the employers of my son is enclosed for the reference. e) My son Gaurav Singh is presently doing his medical degree from Kyrgyz State Medical Academy, Kyrgyzstan. For his studies, we have taken an Education Loan from the Syndicate Bank, Khan Market branch, New Delhi.” 8. Subsequent to the aforesaid letter, the Registrar, Cooperative W.P. (C) No.7975/2013 Page 4 of 11 Societies had written to the respondent No.2 Cooperative Society vide letters dated 10.06.2011 and 25.11.2011 asking for copies of share certificates and original records of membership, all of which were supplied by the respondent No.2 Society. Vide letter dated 31.03.2010, the Registrar, Cooperative Societies had asked the respondent No.2 Cooperative Society to issue a public advertisement inviting objections to the enrolment of the petitioner. The public notice was published on 28.02.2011 and no objections were received. The direction to publish the advertisements would indicate and reflect that the Registrar, Cooperative Societies had accepted the claim of the petitioner regarding his residence.
9. The Assistant Registrar then passed the impugned order dated 20.06.2013 refusing to grant approval of membership to the petitioner on the ground that he had failed to establish that he was a resident of Delhi for at least three years prior to his application for grant of membership in the Cooperative Society, and was in fact a resident of Rajasthan, being employed with the Rajasthan Government up till February-March, 1999. The Assistant Registrar had relied on the circular No.F.PA/JR-II/Misc.Coop/92/1223-1252 dated 13.08.1992 and observed as under:-
""(ix) The above documents have been scrutinized by the office. Further, Shri Kushal Singh attended this office and was given a hearing by the officers concerned, including the RCS, Addl RCS and the undersigned with regard to his claim and documents submitted by him. The following is observed: - Notarized Rent Deed and affidavit by the owner (Annexure E1and E2 respectively) are neither acceptable evidence, nor collateral evidence. Moreover, these are not even of the period under reference, i.e. 1997 to 2000. Further, the said rent agreement/lease deed mentions that the lesser Shri Hardaljeet Singh W.P. (C) No.7975/2013 Page 5 of 11 id as as resident of A-67, Swasthya Vihar and Shri Khushal Singh as resident of A-14, Pandara Road. This implies that Shri Kushal Singh was not residing as A-67, Swasthya Vihar prior to June 2001.-. Service certificate of daughter purportedly (Annexure E3) issued on 13 November, 2001 appears to be forged/backdated. It would be seen that the submitted certificate is signed by one Shri Lakhinder Singh as Managing Director of Business Engineering and Software Technologies Ltd., Noida and it shows the date of issue as 13 November 2001 and email [email protected] Whereas the google's 'gmail'email service itself started in 2004 as an invitation only service ( this can be verified from internet search), establishing forgery/attempt to create a record in backdate. Even otherwise, a certificate issued by a private company in favour of his daughter cannot be construed as a proof of residence of Shri Kushal Singh.-. Copies of registered letters prove nothing. Out of (photocopies) submitted, one (Annexure E4) is sent by Shri Kushal Singh himself as a resident of Jaghina (Bharatpur, Rajasthan) to 'Sangita Fauzdaar D/o Shri Kushal Singh, A-67, Swasthya Vihar, New Delhi-110092. If this letter can be relied on, it only proves that Shri Kushal Singh was of Bharatpur, Rajasthan, and not resident of Delhi. However, in view of the forgery referred above, a doubt is created on the other papers also submitted by him. resident clearly thus the two letters the proposal of (x) Now, therefore, the Registrar Coop Societies being H.O.D. has rejected the society for clearance of membership of Sh. Kaushal Singh, M.S. No.244 for allotment of the flat due to lack of merit on several counts as above. The Daffodil CGHS Ltd. is directed to take further necessary action toward refund etc. of the payments W.P. (C) No.7975/2013 Page 6 of 11 made by Shri Kaushal Singh after deducting any charges as per rules."
10. For the sake of clarity, the relevant portion of circular dated 13.08.1992, relied upon in the impugned order, has been reproduced below:-
"to the field Inspector and Passport Employment Certificate from Govt./Semi “It has been noticed that in case of group housing societies many cases for clearance are stuck up because the members are not able to produce satisfactory proof in support of their residence in Delhi. In order to give clear guidelines the concerned officers, the evidence in support of proof of residence in Delhi has been categorised as under: i) Acceptable evidence; ii) Collateral evidence Acceptable Evidence i) Ration Card ii) Electoral roll iii) iv) Govt. Department v) School certificate of children showing residential address of parents. vi) vii) Collateral Evidence i) LIC Policy ii) Bank A/c iii) Licence iv) v) Water bills vi) vii) viii) residential address ix) companies/organisations. x) Letter/communication Sales/Income Tax assessment order Factory licence showing residential address Shops and Establishment Licence showing Gas connection; and Court case regarding tenancy Registration certificate of vehicle/Driving Employment Certificate from reputed Electricity bills from Govt./Semi- W.P. (C) No.7975/2013 Page 7 of 11 Telephone connection/bills Registered Rent deed Govt./departments/organisations. xi) xii) All these documentary evidence should cover the period of enrolment of the member.
2. If a member submits acceptable documentary evidence, his case can be recommended for clearance. If a member is not able to submit acceptable evidences but submits collateral evidences, the case will have to be decided on merits of each individual case.
3. The above list of documentary evidence is only illustrative to facilitate the work of field inspectors to examine cases for clearance in relation to proof of residence in Delhi. However, cases may come up where some additional documentary evidences, beyond this list, is submitted by the members and such cases have to be examined on merits.
4. D.R. (GH)/A.Rs (GH) may kindly take note of the above guidelines and circulate the same to all the field Inspectors. In future all the cases regarding proof of residence shall be submitted according to the above guidelines strictly."
The aforesaid circular divided the evidence to be supplied in support of proof of residence into two categories; (i) acceptable evidence and (ii) collateral evidence. However, paragraph 3 of the said circular clarifies that the list of documentary evidence was only illustrative to facilitate the working of the Field Inspectors, who were to examine the case for clearance in relation to proof of residence. It was observed that there would be cases where the additional documentary evidence beyond the list could be submitted and relied upon by the members and such cases should be examined on merits. We have already referred to the letter of the petitioner dated 14.09.2009 wherein he has referred to the documents supplied by him in support of his proof of residence. The impugned order fails to notice the aforesaid stipulation in the circular. W.P. (C) No.7975/2013 Page 8 of 11 11. In the impugned order, the Assistant Registrar held that unregistered notarized lease deed dated 22.06.2001 and the confirmatory affidavit of the landlord certifying that the petitioner was his tenant from 2000 were not acceptable as collateral evidence. The Transfer of Property Act, 1882 permits oral leases. Registered leases certainly have greater evidentiary value, yet the affidavit of the landlord cannot be rejected per se as no evidence. In case of doubt, a deeper and greater scrutiny and verification may be required to reject the assertion made on solemn affirmation. The Assistant Registrar has also rejected the "Service Certificate" of the daughter of the petitioner on the ground that it appeared forged and backdated. With regard to the service certificate it is possible that the same may be back dated, but what was relevant and material was whether the contents of the certificate were true and correct. The Assistant Registrar could have asked the petitioner, the said question for clarification. In his letter dated 14.09.2009, the petitioner had stated that his elder daughter, like other family members, was staying with him during the period of February 1996 to February 2001, when she got married. If required, the Assistant Registrar could have asked her or the elder son of the petitioner, who, it was stated, was working in Delhi since 1999 and was staying with the petitioner, to make a solemn affirmation on affidavit and appear in person. The petitioner had made payments towards cost of the flat by cheques drawn from the bank account of the petitioner in Bank of W.P. (C) No.7975/2013 Page 9 of 11 Maharashtra, UPSC, New Delhi. The first payment through the said account was made on 5.12.2000. He had also taken an educational loan for his son from another bank in Delhi. The impugned order is silent on these aspects and assertions in favour of the petitioner and ignores the same. The findings recorded are, therefore, inchoate and based on suspicion and surmises.
12. It is pertinent to note that the requirement of being a resident of Delhi for at least three years prior to the application for grant of membership of a Cooperative Society was not originally mandated by the Delhi Cooperative Societies Act, 1972 or the rules thereunder. The condition was subsequently introduced by way of circulars and required to be incorporated in the bye-laws of the societies established under the Act. The condition was later withdrawn vide the circulars dated 16.12.1992 and 24.02.1994, but was re-introduced vide circular dated 22.04.1997. It is apparent that both the petitioner and the respondent No.2 Cooperative Society did not have knowledge and were unaware of the aforesaid requirement of residence. In the given case, a certain degree of leniency and a liberal approach is to be afforded to the member owing the changing requirement regarding the condition of prior residence.
13. It is apparent that the petitioner has been residing in Delhi pre and post his membership. The petitioner made the entire payment towards the cost of the flat in 2000 and 2001, and has been waiting for approval from the Registrar, Cooperative Societies for the last 15 years. He is certainly a resident of Delhi during this period and earlier. The delay has caused prejudice to the petitioner. Had the petitioner's case been rejected earlier, he could have been re-considered for enrolment and allotted a flat as he satisfies all requirements and mandates. Noticeably, it was open to W.P. (C) No.7975/2013 Page 10 of 11 respondent No.2 Cooperative Society to pass a fresh resolution and affirm enrolment of the petitioner on a subsequent date.
14. Although the impugned order is appealable and revisable, we would however, not relegate the petitioner to an alternative remedy and would deal with the issue and lis in exercise of the power conferred under Article 226 of the Constitution. There are compelling reasons for the same. As noticed above, the petitioner is more than 75 years of age and the matter has remained pending for more than fifteen years. The flat in question is ready, but unoccupied on account of non-approval from the office of the Registrar, Cooperative Societies. The petitioner had made the entire payment fifteen years back without using the flat. The present writ petition was filed in 2013 and has remained pending for the last three years.
15. In the aforesaid circumstances, we quash the order dated 20th June, 2013. The Registrar, Cooperative Societies would issue a letter granting approval to the membership of the petitioner within a period of fifteen days, after a copy of this order is received in their office. The share certificate will be furnished to the petitioner by the respondent No.2 Cooperative Society, within the same period. The petitioner has stated that he would make necessary payments of maintenance and other charges as are payable under the law. The process for allotment of the flat would thereafter to be completed within a period of two months.
16. The writ petition is disposed of. No order as to costs. NOVEMBER18 2016 VKR SANJIV KHANNA, J.
CHANDER SHEKHAR, J.
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