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PETITIONER: R.S. HARDAS

       Vs.

RESPONDENT: FRIENDS CENTRAL GOVERNMENTEMPLOYEES HOUSE BUILDINGSOCIETY LT

DATE OF JUDGMENT:       21/11/1996

BENCH: M.M. PUNCHHI, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Venkataswami. J.      The office  of the second respondent issued a notice on 9.5.1980  to   the  first  respondent  Society  (hereinafter referred to  as "the  Society") to show cause within 15 days from the  date of  receipt of  that notice  as  to  why  the Managing Committee  (then in  office) of  the Society should not be  removed and an administrator appointed in its place. The said  show cause  notice signed  by the Deputy Registrar (H) pointed out several irregularities committed by the said Managing Committee. Immediately the Society through its then President moved  the Delhi High Court by filing C.W. No. 661 of 1980  challenging the  said show cause notice. Ultimately that  writ   petition  was  disposed  of  on  the  basis  of settlement arrived at between the parties and the High Court passed an  order on 22.5.1981 based on a memo of compromise. The relevant clause in the order is clause (iii) which reads as follows :-      "That the society will send notice,      by registered  post acknowledgement      due to  all the  persons who are in      arrears with the society in respect      of an amount exceeding Rs. 500/- By      this notice,  these persons will be      asked   to   file   the   requisite      affidavits and  pay the  balance of      the amount  due from  them as shown      in column  9 of  the Annexure  P/32      for  the   plots  proposed   to  be      allotted  to   them.  Which  amount      includes interest  at the  rate  of      15% per annum from 1st January 1979      upto 30th April. 1981 or an earlier      date  till   which  they   were  in      default. The  requisite  affidavits      and  the  crossed  bank  drafts  in      favour of  the  petitioner  society      for the  amounts  demanded  in  the      notices (as  shown in  column 9  of      the Annexure  P/32) must  reach the

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    society within  one month  from the      date  of   despatch  of   the  said      notice. The  failure to  submit the      requisite  affidavits  or  to  make      payment  within   the  time   shall      finally disentitle  the  person  in      default from  participating in  the      elections as also. from getting the      allotment of  a  plot.  No  further      relaxation,  whatsoever,  shall  be      made  and  the  present  relaxation      shall   not   be   treated   as   a      precedent.      It is  the case  of the  Society that  pursuant to  the above  extracted   clause  in   the  Compromise  order.  the appellant was  called upon to file an affidavit (the form of which was  enclosed  along  with  notice)  within  the  time prescribed therein. The said notice was served on the father of the  appellant as at the relevant time. the appellant was in the  United States  of America.  As the appellant did not file  the  affidavit  in  time,  he  was  removed  from  the Society’s membership  and consequently  he lost the right of allotment of the plot even though admittedly he had paid the entire cost  of the  plot and was not in arrears of any kind on the  date when  the  first  respondent  issued  a  notice calling upon  the  appellant  to  sign  the  affidavit.  The affidavit required  such  member  of  the  Society  who  was entitled to  get allotment  to state on oath that neither he nor his  spouse owns any plot or house in Delhi. It is to be noted at  this stage  that such  a declaration  was  already signed and  filed by the appellant as required under Bye-law (ii) and after getting such declaration he was admitted as a member of the Society.      The appellant  aggrieved by  the action  of the Society removing him  from its membership moved the Delhi High Court by filing  C.M.P.No. 881/1983  in C.W.NO.661/80 in which the High Court  earlier passed  the order  on the  basis of  the compromise memo  giving certain  directions to  the Society. According to  the appellant,  the said  C.M.P. was to permit him to  file the  affidavit even though he was not liable to file such  an affidavit in terms of clause (iii) of the High Court  order.   The  High  Court  did  not  agree  with  the contention of  the appellant  that he was not liable to file such an  affidavit and  he having come to the Court after an inordinate and unexplained delay. he was not entitled to the relief sought  for. On  that ground  the High Court rejected the application.  In these circumstances. the present appeal by special leave has been filed by the appellant.      Mr.  R.   Sunderavaradhan,   learned   Senior   Counsel appearing for  the appellant  took us through the show cause notice  issued   by  the  second  respondent  to  the  first respondent. the compromise order of the High Court passed on 22.5.1981 and  also two  orders passed  by the High Court in similar circumstances dated 25.5.1984 in C.M. No. 164/82 and C.M.  No.   363/82.  It   is  the   contention  of   Mr.  R. Sunderavardhan that  the  action  of  the  first  respondent Society expelling  the appellant  from  its  membership  was totally without jurisdiction and contrary to the bye-laws of the Society  and  also  the  provisions  of  the  Delhi  Co- operative Societies  Act and  Rules framed thereunder. It is his  submission   that  the  Delhi  High  Court  itself  has construed clause  (iii) of  the compromise order in C.M. No. 164/82 in  C.W.No. 661/80  to mean  that notices  issued  to persons who  were not  in arrears  must be  treated as  mis- conceived. That  being the position as explained/interpreted

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by the  High Court. the counsel, argued that the stand taken by the appellant that the Society ought not to have sent the notice when  the admitted  position was  that he  was not in arrears was  right. Even  assuming that the appellant should have filed  an affidavit  in  the  form  prescribed  by  the Society and to be subscribed on a stamp paper. the appellant should have  been given time to file such affidavit. Instead the Society  removed him  from its  membership presumably to oblige some other person waiting in the list. He also placed heavy reliance  on the  orders of  the High  Court passed in C.M. No.  164/82 and  C.M. No.  363/82 and submitted similar opportunity ought to have been given to the appellant by the High Court  and  the  failure  to  do  so  was  not  legally sustainable. He also invited our attention to an order dated 1.3.1989 passed  by this  Court while granting special leave petition  in   the  presence  of  counsel  for  the  Society directing the  Society to keep one plot vacant which will be allotted after  the decision  of this  appeal and  permitted plots to  be allotted  to  other  eligible  members  of  the Society. According  to the  learned counsel  one plot as per orders of this Court must be available as on date and in the event of  success of this appeal. that plot must be allotted to the appellant.      Mr. A.K.  Ganguli, learned Senior Counsel appearing for the Society  except submitting that the notice was served on the father of the appellant and he having failed to file the affidavit within  the prescribed  time. cannot  now seek the relief of  allotment of the plot. has no effective answer to the  argument   that  on  the  admitted  position  that  the appellant was  not in  arrears of  any kind on the date when the notice was issued, the issuance of notice itself was not right. Mr.  Ganguli father  submitted that  subject  to  the result of  this appeal,  the plot reserved as per the orders of this Court has been allotted to the person in the waiting list and in case, the appellant succeeds that plot will have to be allotted to the appellant.      We have  gone through  the  relevant  materials  placed before us  and after considering the rival arguments, we are of the view that the appellant has made out a case.      As pointed  out by  the learned  Senior Counsel for the appellant, the  High Court  itself had occasion to decide an issue similar  to the  one under  consideration in C.M. Nos. 164/82 and  363/82. The High Court observed therein that ’we are satisfied that the applicant had paid a sum Rs. 15,508/- before the  date of  that notice and this is now accepted by counsel for  the Society. It is also accepted by the Society that the  amount to  be paid  for a  plot measuring  was Rs. 15,500/-. It  is, thus  obvious that the applicant/appellant was not  in default  and hence  the notice  sent to  him was misconceived.   the   appellant/appellant   is,   therefore, entitled to a plot. (Emphasis supplied)      After observing  as above.  the High Court directed the Society to  allot a  plot to the applicant/appellant in that case  and  permitted  the  applicant/appellant  to  file  an affidavit within  one month  from the  date  of  the  order. Similar order  was also  passed in C.M. No. 368/82. When the matter  under  appeal  came  up  before  the  High  Court  a different view was taken presumably overlooking the relevant fact that  the appellant  was  also  not  a  defaulter  and. therefore, the  Society ought  not to  have sent a notice as contemplated under  clause (iii) of the compromise order. We are also  told and  it is not disputed that on the date when the High  Court dismissed  the application  of the appellant allotments were not complete and there was no good ground to deny the  appellant from producing an affidavit in any event

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in the form required by the Society.      In the  circumstances, we  are of  the  view  that  the denial of  the relief  to the  appellant by  the High  Court cannot be  sustained and  the appellant  must be  allotted a plot and  if the  required affidavit  has not  already  been filed by  the appellant.  the same  will be filed within one month from the date of this order.      In the  result. the  appeal is allowed and the order of the High  Court is set aside and the prayer of the appellant in C.M.P.  No. 881/83  to  the  extent  indicated  above  is allowed.      1.A.No.1/89 is  filed by  the individual who was in the waiting list  and who  has been allotted the plot kept under reserve subject  to the  result of  the appeal.  As  already stated, the  allotment to the applicant in I.A.No. 1/89 must be subject  to the  result of  this appeal. As the appeal is now allowed,  the application for intervention is dismissed. This will  not, however,  prejudice  his  any  other  rights against the Society.