Parmod Kumar and Others vs Union Territory and Another

N.K. Kapoor, J.—Petitioners seek issuance of a writ of certiorari quashing order dated 23rd November, 1994, annexure P-7, whereby the claim of the petitioners on the basis of their seniority for allotment of plots surrendered due to the resignation by the members has been disallowed as well as issuance of a writ of mandamus directing respondent No. 1 to make necessary entries in their record as allottees against these residential plots which were allotted by the Society to the petitioners and forwarded to the Administration for approval and for approval of their names as lawful allottees of the said plots.

Briefly, put, Shantivan Cooperative House Building Society Ltd. respondent No. 2 was registered as a House Building Society with the Registrar of Cooperative Societies, Union Territory, Chandigarh before 31st December, 1981. A number of persons were enrolled as its members from, time to time. Petitioners were enrolled as its members on 4th July, 1989 and as per record their numbers exist at Serial Nos. 334 to 342 of the register of the members of the said Society. This Society was formed to provide plots/flats to the bonafide residents of Union Territory, Chandigarh, who are not having any plot or flat either in their names or in the name of their spouse or children. It is on 28th September, 1979 that Chandigarh Administration floated a Scheme known as Chandigarh Allotment of Sites to Cooperative Housing Societies Scheme, 1979 as amended on 27th January , 1983 and under this Scheme respondent No. 2-Society was covered. In the aforesaid Scheme there was no cut off date for registration of Society or enrollment of members of the Society. A copy of the Scheme of 1979 and the amendment effected in 1983 are attached as Annexures P-1 and P-2. This Society consisted of 200 persons and so was allotted 200 plots i.e. 156 plots on 14th November, 1986 and 44 plots on 6th December, 1988 on certain terms and conditions as stipulated by the Estate Officer.

It is the case of the petitioners that four plots fell vacant due to resignation/withdrawal of membership by the concerned members and as the petitioners were entitled to be allotted on account of their seniority in the list of members, respondent No. 2-Society allotted the four plots in favour of the petitioners. It is thereafter that the Society approached the Chandigarh Administration seeking substitution of the name of the petitioners in place of erstwhile members and placed reliance upon the earlier decision of the Administration where such like members/persons had been substituted and the plots allotted. Estate Officer recommended the claim of the petitioners yet the matter remained pending for one or the other reason and ultimately the same had been declined vide annexure P-7 solely on the ground that the petitioners have been enrolled after the cut off date i.e. 31st December, 1981 and so are not entitled to allotment of plots. This action of the respondents has been turned to be wholly illegal, void, arbitrary, discriminatory and violative of judgment, annexure P-5 dated 28th February, 1994.

Respondent No. 1 in its written statement has resisted the claim of the petitioners on the ground that no doubt respondent No. 2-Society was registered on 3rd September, 1981 and the application for allotment was also made by the Society on 29th September, 1981 when it had 200 members, the right to acquire a plot/flat is of those 200 members alone and as in the present case petitioners were enrolled as members of the Society on 4th July, 1989 these persons are not entitled either for flat or for land in view of Clause 14 of the allotment letter issued by the respondent Administration in favour of the respondent-Society. Other material averments have been replied/controverted.

Counsel for the petitioners after briefly narrating the factual aspects ultimately leading to the filing of the writ petition has argued that respondent No. 2 Society is a registered Society under Cooperative Societies Act. This Society applied for the allotment of land/plots in terms of the Scheme floated by the Chandigarh Administration and was ultimately allotted plots of various sizes which numbered 200. On account of death/resignation of few members Certain other members were enrolled by the Society, who consequently made request for allotment of plots which had been surrendered by the outgoing members on the plea that they were seniors as per the list of the members. Since there was no cut off date to become eligible for plot under the Scheme the order passed by the authority, annexure P-7, is legally unsustainable. Otherwise too, the matter stands concluded by the decision of this Court in Ram Avtar Sheoran and Ors. v. Union Territory, Chandigarh and Ors., decided on 28th February, 1994.

Respondent counsel relied upon, Clause 14 of allotment letter, which is hereunder reproduced:-

"Clause 14: The Society shall allot the plots to different members category wise. A copy of the allotment letters each may be sent to this office. If the allotment of the plot is made to some other persons whose name is not included in the list supplied by the Society, the allotment of the said plot will be cancelled and earnest money forfeited."

and argued that the same prohibits the Society from enrolling any further members. According to the counsel, otherwise too, the petitioners are not eligible for allotment of plots under the Chandigarh Allotment of Sites to Cooperative Housing Societies Scheme, 1979 as amended in the year 1983 and so the order dated 23rd November, 1994 annexure P-7 rejecting the claim of the petitioners was just and appropriate.

I have heard the learned counsel for the parties as well as perused the various documents referred to by the respective counsel. The registration of Society and its claim to the allotment of 200 plots is not a matter in dispute. The only dispute pertains as to whether the Society could enroll/substitute members in place of persons who cease to be members on account of death, resignation etc., and if so whether such members could become entitled to the allotment of plots which had fallen vacant. Society duly registered under the Registration of Societies Act performs its function as per its own Rules, regulations and bye laws. It is well within its rights to enroll as many members provided such members agree to fulfil all conditions as stipulated in the Rules. Thus, once a person applied to be enrolled as a member and agrees to fulfil all conditions with regard to his enrollment, payments, the Society has unhindered rights to enroll such persons as members. On the petitioners'' becoming members of the Society their names were forwarded to the respondent for allotment of four plots as the petitioners alone were seniors as per list of members. This prayer has been declined only on the ground that these members have been enrolled after the cut off date i.e. 31st December, 1981. Counsel for the respondent has not been able to satisfy me as to the rational of the cut off date nor could bring it to my notice the precise communication which was addressed to the Society debarring it from enrolling any new member after 31st December, 1981. Even the copy of the allotment letter out of which Clause 14 has been referred to, has not been annexed with the written statement. As per Scheme floated by the respondent for allotment of sites to Cooperative Housing Societies, all it provides is that none of the member of the Society owns a dwelling unit or a residential structure at Mani Majra, Panchkula or S.A.S. Nagar Mohali either in his own name or in the name of his wife/husband or any of his dependent relation including un-married children or as a member of HUF either on free hold or on lease hold or on higher purchase basis. Scheme further lays down the norms for allotment of these plots, keeping in view the monthly income of each one of the group of members. So, such persons can be enrolled as members of the Society who do not own a dwelling unit or a residential structure in any of the places mentioned above. There is no other stipulation in the Scheme of 1979 as well as of 1983. So, I find no merit in the plea of the respondent that since petitioners have been enrolled after 31st December, 1981 they cannot be allotted plots/sites. In fact, in somewhat similar circumstances this Court in Civil Writ Petition No. 2450 of 1993 gave a direction to the Chandigarh Administration to consider the names of the petitioners of that writ petition for allotment of plot/flat in accordance with seniority inter-se. Accordingly, I accept the writ petition, quash order annexure P-7, dated 23rd November, 1994 and direct the respondent to allow the names of the petitioners to be substituted as prayed by respondent No. 2-Society as well as allot them the residential plots without any further delay and preferably within a period of three months from the receipt of order of this Court.