Kalu Ram Sharma vs The Financial Commissioner and Others

Sanjay Kishan Kaul, J

The petitioner acquired membership of respondent NO. 2-Society on transfer from the original membership of his brother. The transfer was approved on 4. 4. 1976 and the petitioner claims to have been waiting for a plot since then as he was on the waitlist.

The petitioner claimed that it is in the year 2004, that he came to know that respondent NO. 3 had obtained an allotment of a plot fraudulently as he was disqualified on account of owning another property. The Society, however, did not heed to the representation of the petitioner and the petitioner made a complaint to the Office of the Registrar, Co-operative Societies (for short "RCS")/respondent NO. 4. The Assistant RCS was appointed to verify the ownership of property NO. 1/11274, Subhash Park, Naveen Shahdara, Delhi on account of which the petitioner alleged that respondent NO. 3 was disentitled. The ownership of this property is stated to have been confirmed through the inquiry process. However, the RCS in terms of its order dated 2. 6. 2010 found that respondent NO. 3 fell within the exception clause provided under Clause 25 (1) (c) (i) of the Delhi Co-operative Societies Rules, 1973 (hereinafter referred to as the "DCS Rules"). The petitioner aggrieved by this decision filed a Revision Petition u/s 116 of the Delhi Co-operative Societies Act, 2003, which has been dismissed vide impugned order dated 7. 7. 2011

Learned counsel for the petitioner has, in the writ petition, reproduced the relevant portion of Rule 25 of the DCS Rules, which reads as under:

Disqualification of Membership

No person shall be eligible for admission as a member of a co-operative society if he.

... ... ...

(c) in the case of membership of a housing society:-

(i) owns a residential house or a plot of land for the construction of a residential house in any of the approved or un-approved colonies or other localities in the National Capital Territory of Delhi, in his own name or in the name of his spouse or any of his dependent children, on lease hold or free-hold basis or on power of attorney or on agreement for sale.

Provided that disqualification of membership as laid down in sub-rule (l)(c)(i) shall not be applicable in case of co-sharers of property whose share is less than 66. 72 sq. metres of land

Provided further that the said disqualification shall not be applicable in case of a person who has acquired property on power of attorney or through agreement for sale and on conversion of the property from leasehold to freehold on execution of conveyance deed for it, if such person applies for the membership of the housing society concerned;

It is the say of the learned counsel for the petitioner that the first proviso does not apply to respondent NO. 3 as it would be applicable only in the case of a co-sharer of the property where the share is less than 66. 72 sq. mtRs. (approx. 80 sq. yds. ). Respondent NO. 3 has been held to be exempted on account of the fact that the property already in his ownership was measuring 72 sq. yds. He, thus, submits that the proviso is not applicable to a single owner.

We are unimpressed with this argument as this issue has been dealt with by us in WP (C) NO. 2550/2011 titled Bindya Agarwal Vs. Registrar of Co-operative Societies & Anr. decided on 30. 5. 2011.

Supreme Court in Delhi Development Authority Vs. Jitender Pal Bhardwaj, , held: When a person acquires a flat in a multi-storeyed building, what he gets is co-ownership of the land on which the building is constructed and exclusive ownership/long-term lease of the residential flat. As per Clause i(ii), where the individual share in the land on which the building stands, held by the allottee is less than 65 sq. m, he is not barred from securing allotment from DDA. The other interpretation is that if the measurement of the flat is less than 65 sq. m and the allottee owns only an undivided share in the land, corresponding to such flat, the benefit of exemption would be available to the applicant.

On a parity of reasoning if the expression co-sharer is to include co-owner [see DDA vs Jintender Pal Bhardwaj (supra)], we see no difficulty in extending the expression to an individual owner who has standalone property admeasuring less than 66. 72 sq. mtRs. This is for the reason: if in a multi-storeyed building each person''s proportionate share in the land is to be calculated to determine as to whether or not he falls within the exclusion carved out in the first proviso, we see no reason why an owner of standalone property cannot take recourse to exclusion carved out in the said Rule. The object of the rule appears to be to keep persons outside the disqualification criteria as long as: what they own by way of share is really not of much significance. In our view any other interpretation would lead to absurd and unfair result, when seen in the light of the supreme judgment. To wit it would be untenable to say that a person who owns a flat in a multi-storey building admeasuring a couple of thousand square feet would fall within the exclusionary portion of the Rule as his proportionate share in the land is less than 66. 72 sq. mtrs, whereas a person of meagre means holding a standalone property admeasuring less than 66. 72 sq. mtrs cannot avail of the benefit accorded by the exclusion engrafted in the said Rule.

A further important factor which we have to take note of is the second proviso which has been reproduced hereinabove. The admitted fact of the present case on account of the impugned order is that the alternative property had been purchased by respondent NO. 3 on Power of Attorney basis. Thus, the second proviso in any case applies in respect of the alternative property and, thus, respondent NO. 3 cannot be held disentitled when the plot was allotted to him. The property at Subhash Park, Naveen Shahdara, Delhi, which is the alternative property measuring 72 sq. yds. was purchased through a GPA registered on 10. 1. 1980.

We see no reason to interfere with the impugned order under Article 226 of the Constitution of India.

Dismissed.