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CASE NO.: Appeal (civil)  5373 of 2007

PETITIONER: Delhi Development Authority

RESPONDENT: Arjun Lal Satija and Ors

DATE OF JUDGMENT: 23/11/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.    5373            OF 2007 (Arising out of S.L.P. (C) No. 4024 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to by a Division Bench of the  Delhi High Court allowing the writ petition filed by the  respondent no.1  3.      Factual background in a nutshell is as follows:

The land to which the present dispute relates was  allotted to The Mianwali District Cooperative House Building  Society Ltd., Flat No. 3-A, New Qutab Road, Delhi. Father of  Respondent No.1 was a member of the Society. Members of the  Society were entitled to be included in the draw of lots for  allotment of land. Before any allotment of land was done,  father of respondent No.1 died on 22.11.1974. Respondent  No.1 filed an application for issuance of succession certificate  which was allowed on 17.02.1986. The Managing Committee  of respondent No.3-Society adopted a resolution transferring  the membership of Shri K.K. Satija in favour of respondent  No.1. Thereafter, respondent No.1 approached the office of the  Registrar of Cooperative Societies (in short ’the Registrar’) for  clearance and for forwarding his name for inclusion in the  draw of lots by the appellant. On 16.05.1994, the Registrar  issued a show cause notice to respondent No.1 as to why his  membership of the Society be not cancelled for the reason that  he was already owning a residential house at A-120, Saraswati  Vihar, Delhi. On 13.10.1994, an order in this regard was  passed by the Registrar. But the membership was restored by  the Government in a revision petition filed under Section 80 of  the Delhi Cooperative Societies Act, 1972 (in short ’the Act’). A  writ petition was filed before the Delhi High Court challenging  the non-inclusion of the respondent No.1’s name for allotment.  The Delhi High Court passed an order directing clearance of  the name of respondent No.1, since no order was passed in  terms of the High Court’s order. Two and four weeks’ time  were granted for inclusion of name and allotment of the plot.   Since same was not done contempt proceedings were initiated.   In these proceedings, the present appellant was not a party. In  the contempt proceedings, a statement was made by the

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official of the Registrar, Cooperative Societies-respondent No.2  that the clearance letter for holding draw of lots for allotment  of plot of 300 sq. yds. would be issued immediately.  Accordingly, the application was disposed of. On 19.02.2004,  respondent No.1 approached the appellant for allotment in the  draw of lots. At that point of time, the appellant came to know  that order relating to inclusion of the name of respondent No.1  had been passed. Respondent No.1 filed another writ petition  seeking a writ of mandamus against the appellant to allot and  handover the plot. The Division Bench allowed the petition and  held that there was no substance in the plea raised by the  appellant and that the membership of a society and eligibility  for a plot are entirely independent issues. It also did not find  any substance in the plea that because respondent No.1 was  having another plot in his name, he was ineligible for  allotment of a plot in the society. The appellant’s contention  centred around Rule-17 of the Delhi Development Authority  (Disposal of Developed Nazul Land) Rules, 1981 (in short the  ’Rules’).  

4.      The High Court held that        Rules are not applicable to the  case of respondent No.1.  

5.      In support of the appeal, learned counsel for the  appellant submitted that true import of Rule 17 has been lost  sight of by the High Court. On the other hand, learned counsel  for the respondent submitted that Rule 17 has no application  as the land in question was not Nazul land. It was also  submitted that Section 87 of the Act on which the appellant  has placed reliance, does not apply to the present case.

6.      The dispute revolves primarily around applicability of  Rule-17.  The same reads as follows:

"17.    General restriction to allotment for  residential purposes.

Notwithstanding anything contained in  these rules, no plot of Nazul land shall be  allotted for residential purposes, to an  individual other than an individual referred to  in clause (i) of rule 6, who or whose wife  husband or any of his or her dependent  children whether minor or not, or any of his  her dependent parents or dependent minor  brothers, or sisters, ordinarily residing with  such individual, own in full or in part, on lease  hold or free hold basis, any residential land or  house or who has been allotted on hire  purchase basis by residential land or house in  the Union Territory of Delhi;

Provided that where, on the date of   allotment of Nazul land,

(a) the other land owned by or allotted to such  individual is less than 67 square metres, or

(b)     the house owned by such individual is a  plot of land which measures less than 67  square metres, or

(c) the share of such individual in any such  other land or house measures less than 67  square metres, he may be allotted a plot of

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Nazul land in accordance with the other  provision of these rules."

7.      A bare reading of the Rule makes it clear that it applies  only to Nazul land. Nowhere, it was the stand of present  appellant that the land in question was Nazul land. Therefore,  the question of applying Rule-17 does not apply. 8.      Additionally, Section 87 of The Delhi Co-operative  Societies Act, 2003 also has some relevance. The same reads  as follows:

"87. Additional around for cessation of  membership of co-operative housing society -  Subject to the provision of this Act, in the case  of a co-operative housing society, a person  shall also cease to be a member of a co- operative society -

(a) an disposing of the property through  instrument of power of attorney and agreement  for sale subject to the interest of the mortgage  if there is any loan on the property; or

(b)     if he - (i)     before becoming a member of a co- operative housing society, already owns,  either in his own name or in the name of  his spouse or any of his dependent  children.

(ii)    after becoming a member in a co- operative housing society, during the  currency of such membership, till  allotment of any plot or flat to him, as the  case may be, acquires either in his own  name or in the name of his spouse or any  of his dependent children, a residential  property exceeding 66.72 sq, metres in  area, in any of the approved or  unapproved colonies or other localities in  Delhi either on lease hold basis or free  hold basis or own power of attorney or on  agreement for sale basis:

Provided that no person having  residential property under this Section in  the village abadi area in Delhi shall be  disqualified:

Provided further that no such  disqualification shall be applicable in the  case of a person who has acquired  property on power of attorney or through  agreement for sale and on conversation of  the property from leasehold to freehold on  execution of conveyance deed for it, if  such person applies for the membership  of the co-operative housing society  concerned:

Provided also that no member shall earn  disqualification in clause (b) above, if the  residential Property devolves on his by way of  inheritance."

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9.      The last proviso to Section 87 makes the position clear  that it does not apply to a case of inheritance. The undisputed  position is that the property devolved on the respondent no.1  by way of inheritance. But it is not necessary to go into the  question in the present dispute because there was no material  placed before the High Court to justify the stand that Rule-17  had any application. 10.     In view of the aforesaid, the High Court’s view does not  suffer from any infirmity to warrant interference. The appeal is  devoid of merit and is dismissed but in the circumstances,  without any order as to costs.