Punit Mittal and Another vs State of Haryana and Others

Sanjay Kishan Kaul, C.J.—Petitioner No. 1 became a Member of respondent No. 4-Society in the year 1991 and was allotted a plot of 500 Sq. Yards in the land of the Society bearing No. C-17, for which allotment letter was issued subject to the bye-laws of the Society and the rules and regulations applicable to such Cooperative House Building Societies. The terms of allotment inter-alia put a restriction on the allottee from transferring by way of sale, gift, mortgage or otherwise the plot, till the full price is paid up, except with the prior permission of the Society. Petitioner No. 1, as per the letter of allotment dated 25.12.1991, paid the amount of Rs. 1,00,000/- as the entire purchase price for the plot. Certain additional demands were raised thereafter towards external development charges and internal development charges as also for payment for purchase of additional land, which were also deposited. The case of petitioner No. 1 is that when he asked for possession of the plot in January 2003, instead of the possession being handed over, he was informed that on 9.1.2001, his name had been removed from the membership of the Society as per a resolution of the even date.

The aforesaid controversy arose on account of petitioner No. 1 seeking to transfer the plot in favour of Mr. Chander Shekhar Gupta, later father of petitioner No. 2 (subsequently impleaded as a party in the present writ petition vide order dated 5.7.2010). Petitioner No. 1 addressed a letter dated 1.9.1994 to the Society, stating that he had sold his plot to father of petitioner No. 2 and requested for transfer of the plot in his name. It appears that some amounts were also deposited by Chander Shekhar Gupta, late father of petitioner No. 2 qua the plot with the Society and the Society claims to have encashed the amount but kept the same in a suspense account. No communication emanated from the Society, either rejecting or accepting this request, till the removal of the name of petitioner No. 1 on 9.1.2001.

The say of petitioner No. 1 is that he having paid the full amount, either his allotment should have been kept intact, if the transfer was not to take place or transfer ought to have taken place, especially keeping in mind the restrictive clause, which did not prescribe an absolute ban on transfer but only a ban till the full price was paid and even prior to payment of full price, the same could have been done with prior permission of the Society.

Petitioner No. 1 preferred an appeal before the Appellate Authority on 4.6.2003 but the said Authority rejected the appeal vide order dated 31.5.2004, holding it as barred by time for about four months and finding no sufficient cause to condone the delay.

Petitioner No. 1 apparently thereafter slept over the matter till a writ petition under Article 226 of the Constitution of India was filed in and around the end of January 2006 numbered as Civil Writ Petition No. 1741 of 2006. Notice of motion was issued on 3.2.2006 but ultimately this writ petition was withdrawn in the course of hearing on 9.8.2007 in view of the alternative remedy of revision available to petitioner No. 1. Petitioner No. 1 thereafter filed a revision petition.

The revision petition was also dismissed on 2.6.2008, holding that the order of the Appellate Authority on the appeal being barred by time and lack of sufficient cause, could not be faulted. Simultaneously, some observations have been made that petitioner No. 1 did not deposit the outstanding amount well in time despite various notices sent to him and on the ground that the membership has been transferred in favour of petitioner No. 2 at his own level without prior permission of the Managing Committee of the Society. It is this order which is sought to be assailed before us in the present writ petition under Article 226 of the Constitution of India.

We have heard the learned counsel for the parties at length, including the subsequently added respondent No. 5.

Said respondent No. 5 sought impleadment on the ground that the plot was allotted in favour of Indra Maya Ram on 9.4.2002. She, in turn, transferred it to Anil Goyal and Mrs. Anuradha Jain vide sale deed dated 17.5.2006, who in turn transferred it to respondent No. 5 vide sale deed dated 9.5.2008. Said respondent had availed of loan facilities for purchase of plot and construction and substantial construction was raised as per photographs annexed. Though the said respondent was not the original party, yet she came forward to join the proceedings but in the bargain, in view of the interim order, further construction was stopped and the property is lying in that condition for the last five years, causing grave and irreparable prejudice to the said respondent.

The aspect urged by respondent No. 5 is that the said respondent is a bonafide purchaser of the property and should not be prejudiced on account of delay on the part of petitioner No. 1 in seeking relief. In this behalf, learned counsel specifically pointed out to the delay between the decision on appeal on 31.5.2004 and the writ petition being preferred towards the end of January 2006 i.e. delay of almost 20 months. Submission is that whether the petitioner was preferring a revision petition or a writ petition, there could be no justification for such an inordinate delay in taking recourse to the legal remedy. Learned senior counsel for the petitioners cannot give us any satisfactory explanation for this period of delay and in our view, such delay would be fatal qua any relief, which petitioner No. 1 seeks effecting the rights of respondents No. 5. We are, thus, unambiguously of the opinion that qua the plot in question, petitioner No. 1 cannot be permitted to raise a grievance after such an inordinate delay and, thus, the title to the plot should be enjoyed by respondent No. 5 unhindered by any objection or litigation of the petitioner. The principles of delay & latches would stand in the way of the petitioners.

That brings us to the grievance of the petitioner that atleast the Appellate Authority ought to have gone into the controversy on merits, especially keeping in mind the fact that petitioner No. 1 has not been informed of any decision by the Society of either acceptance or rejection of his request for transfer of the plot in favour of petitioner No. 2. The delay was stately of four months and it has been pleaded that it is not so fatal as to knock out petitioner No. 1 on the ground of limitation.

To the aforesaid extent, we are in agreement with the submission of learned senior Counsel and are of the view that the Appellate Authority ought to examine the controversy qua the cancellation of membership of petitioner No. 1, but now without effecting the rights of respondent No. 5. The Revisionary Authority could not have gone beyond the adjudication of the Appellate Authority, which had knocked out the appeal only on limitation. There are some stray observations of the Revisionary Authority, which cannot prejudice petitioner No. 1, more so when the scope of scrutiny is different in appeal and the revision petition.

We are, thus, of the view that the appeal of petitioner No. 1 before the Appellate Authority needs to be examined on merits subject to all objections as may be raised by the respondent-Society. We are of course conscious of the fact that the plot in question, earlier allotted to petitioner No. 1, would not be now available but the question would still remain of restoration of membership of petitioner No. 1 or whether the transfer in favour of petitioner No. 2 could take place, which could mature into a plot only if further plots are available/carved out from the land of the Society. All these aspects would be for the Appellate Authority to determine.

We, thus, set-aside the orders of the Revisionary Authority dated 2.6.2008 and of the Appellate Authority dated 31.5.2004. The delay on the part of petitioner No. 1 in preferring the appeal is condoned and the appeal is directed to be decided on merits, subject to any objections by the Society.

The writ petition is allowed in the aforesaid terms. The parties to bear their own costs.

The petitioners and respondent No. 4-Society to appear before the Appellate Authority/respondent No. 3 on 10.9.2013 at 11 A.M.

Copy of the order be sent through counsel without process fee to respondent No. 3/Deputy Registrar.

Needless to observe that all interim orders qua plot in question stand vacated.

In case any fresh plots are carved out by respondent No. 4-Society, one plot of 500 Sq. Yards (if lesser size of plots are to be carved out, then of such size, which is nearer to 500 Sq. Yards) be kept reserved for petitioner No. 1, subject to decision in appeal. Since the matter was on hold for long time, the Appellate Authority would endeavour to conclude the proceedings as early as possible, preferably within six months from the date fixed before the said Authority.