Subhash Kwatra vs Registrar Of Cooperative Societies & Anr

S. RAVINDRA BHAT, J.

CM APPL. 29672-29673/2018 in W.P.(C) 495/2007

CM APPL. 30787/2018 in W.P.(C) 7225/2013

1 The applicant seeks directions for the implementation of the judgment of this Court. On 23.02.2016, the Division Bench of this Court had disposed

of WP(C) Nos.495/2007 and 7225/2013 (filed by the present applicants) and WP(C) Nos.7227/2013 and 9554/2015 by a common judgment.  Â

2 The Court had noticed that the writ petitioners were the members of the Saraswati Cooperative Group Housing Society â€" respondent (hereafter

referred to as “the Societyâ€). The complaint of the petitioners in an earlier round of proceedings [WP(C) No.12594/2004] was that despite

their eligibility their names were not considered for draw of allotments of flats held on three different dates in 2001-2003. This led to their

approaching the Court and seeking remedies under Section 70 of the Delhi Cooperative Societies Act, 1972 (hereafter as “the Actâ€). All the

petitioners succeeded in those proceedings under the Act. The Court had in its earlier judgment disposed of all the writ petitions directing the

occupants of the flats that the flats illegally occupied by them should be vacated; the Registrar of cooperative societies was asked to take steps in this

regard and also conduct a draw of lots in regard to the same flats, for allotment to the rightful members, including the petitioners. Some of those

occupants approached this Court in R.A. No.367/2009 which was disposed of on 17.09.2009.Â

Especially, the R.A. was disposed of against them with some observations.Â

3 In its judgment dated (of 23.02.2016) in para 7, the Court had extracted the previous order which listed out the individuals â€" totaling 29 who were

considered to be as unauthorized occupants. Thereafter the Court finally proceeded to issue the following directions:

“12. In view of the above established facts and the series of directions issued by the Court, it is imperative that suitable orders are made to the

respondent authorities to ensure that unauthorized occupants are firstly affected and thereafter a proper draw-of-lots is held in accordance with the

rules, with the involvement of DDA and the Registrar of Cooperative Societies, in which the names of the present petitioners and all other eligible

candidates are duly included. This Court therefore directs that:

(1) The respondent authorities, especially the Registrar of Cooperative Societies takes appropriate steps to evict the 29 unauthorized occupants whose

possession is plainly unlawful.

(2) This process shall be completed at the earliest and in any event not later than eight weeks from today. If necessary, the Registrar shall seek the

assistance of all authorities including the Delhi Police in ensuring that the process is complete. Â

(3) Within six weeks of completion of the steps indicated in No.1 above, the DDA and RCS shall ensure that the names of the present petitioners-and

all other individuals while like them (whose names are mentioned in Annexure 2 of the affidavit of Sh. Jitender Kumar Singh, Assistant Registrar of

August 2012 in W.P.(C) No.7227/2013) and all others placed similarly are included in the draw-oflots.Â

(4) the respondents shall ensure that based upon the results of the draw-of-lots the possession of the flats allotted to those successful in the draw-of-

lots are handed over within four months from todayâ€​.

4 After the main order, Review Petitions (R.P. Nos. 182/2016 and 212/2016) were filed. By order dated 10.11.2016 the Court partly allowed the

Review Petition, noting as follows:

As far as the review petitioners’ submissions are concerned, the previous orders of the Court especially the one dated 29.10.2010 clearly

shows that flats involved were 31 in numbers and that 7 of them had been allotted to legitimate and regular members. The records clearly show that

the predecessor of Mr. Himanshu Aggarwal, one of the review petitioners in R.P.182/2016, was Shri K.K. Malhotra. The inspection report clearly

bears out that Mr. Malhotra was an original Member and had been allotted Flat No.D-403. Likewise in Shri Wahi’s case (in R.P.212/2016) too,

the record speaks of his having approached the Court earlier in W.P.(C)2598/2002; the Registrar did not dispute his claim. The documents placed on

record by him show that at all material time he was, right from the inception, a member of the respondent society. As a consequence of the wrongful

exclusion of his name from the draw of lots, he approached the Court which ultimately resulted in flat no.F-301 being handed over to him. During the

hearing, the respondent, i.e., the Registrar and the Society did not dispute the correctness of these facts.Â

In the light of these developments, the main judgment of this Court dated 23.02.2016 is hereby reviewed to the extent that the flats under

occupation of the said two individuals, i.e., Himanshu Aggarwal (transferee/deriving title from the original member K.K. Malhotra) and Shri Vinod

Kumar Wahi - presently occupying D-403 (Category A) and F-301 (Category B) respectively shall not be included in the list of occupants (who are to

be evicted) and shall not be included in the list of flats which shall be vacated.Â

As far as the submissions of the other parties, i.e., other members to be evicted are concerned, the Court sees no justification or rationale to review

its directions. The final judgment itself would show that the matter with respect to legitimacy or occupation of the 29 flats was pending consideration

from 2004; on 17.08.2009 those petitions were disposed of; even the review petitions were rejected later. The Court had noticed another previous

Petition - W.P.(C)495/2007 and various orders made from time to time in that case as well as the order dated 29.10.2010. The legality of the

possession of subsequent occupants - who were given the flat after the draw of lots in the 163 built up flats - was, therefore, held to be unlawful.Â

Having regard to the findings which are based upon a series of previous orders, the Court sees no reason to disturb the final directions in its main

judgment of 23.02.2016.Â

The review petitions - R.P.No.182/2016 & 212/2016 are allowed to the extent that the occupants in Flat Nos.D-403 (allotted to the original

member Shri K.K. Malhotra) and F-301 (Category B allotted to Shri Vinod Kumar Wahi) shall not be evicted and their names shall not be included in

the list of occupants who are to be asked to vacate from the premises.

5 Non-parties, i.e. the occupants who were to be evicted on account of the time bound directions which required vacation of flats by the occupants

approached the Supreme Court by filing Special Leave Petition (CC) No.435-436/2017 aggrieved by the judgment dated 10.11.2016 in the Review

Petitions.  The said Special Leave Petition was dismissed on 13.01.2017 in the following terms:

“Upon hearing the counsel the Court made the followingÂ

    O R D E R

Permission to file the special leave petition is granted.

Delay condoned.

The special leave petition is dismissed.

However, six months, time is granted to the petitioners to vacate the suit premises on filing the usual undertaking within four weeks from today.â€​Â

6 On 01.05.2017 the Supreme Court passed an order directing the holding of draw of lots by 30.5.2017 in the following terms:

“Having heard learned counsel appearing for the applicants and upon perusal of these interlocutory applications, we direct the respondents to hold

draw of lots of the flats in question before 30.05.2017, in accordance with the Rules and By-laws.â€​ Â

With the aforesaid directions, I.A. Nos.23-24/2017 filed in SLP(C) Nos.1718-1719/2017, stand disposed of.Â

7 As a result of the previous order of the Court and the judgment, the rights of the individuals who were unlawfully kept out from the draw of lots had

crystallized corresponding to those who were in occupation of the premises i.e. the concerned flats were declared to be unauthorized occupants. Â

Their attempt to have the judgment reviewed was to no avail.  Even the Supreme Court did not interfere and grant any relief. In the

circumstances, the Supreme Court on an application made subsequent to its earlier order of 01.05.2017, modified the directions with respect to the

holding of draw of lots and stated as follows:

“Heard and perused the applications for directions.Â

We direct that the time granted earlier by this Court is further extended till Respondent No.1 finalizes the process of fresh draw of lots of the flats in

question and hands over the possession to the successful allottee/s.Â

In view of the above, these applications stand disposed of.â€​

8 The applicants here complain that despite repeated orders and judgments of the Court, the Registrar of Cooperative Societies has not taken any

action to implement the directions. It is pointed out that even though initially the Supreme Court merely granted time to the non-applicant/third

parties for six months (to vacate the premises) and later, to the Registrar, to complete the draw of lots by 30.05.2017, now by virtue of extension

granted on 21.7.2017, under the pretext of finalizing the fresh draw of lots no has been taken.  The applicants rely upon letter dated 24.11.2017

and 18.4.2018 written to the Registrar of Cooperative Societies.   Â

9 It is pointed out that this Court in its main judgment of 23.02.2016 had clearly stated [in para 12(2)] that the names of those individuals mentioned in

Annexure-2 of affidavit of Jitender Kumar Singh was to be included in the draw of lots. The successive status reports by the Administrator of the

Society included the names of the applicants despite which, no attempt is made on behalf of Registrar to take action.Â

10 On behalf of the non-applicant it is urged that the process of drawing up the correct list of participants in the draw of lots would entail examination

of the record and that the Registrar should be afforded adequate chance. Besides, it is also urged that non-parties’ rights have not been

considered.  It is submitted that such occupants cannot be called unauthorized or in illegal occupation for the reason that they did seek a secured

allotment which was on the basis of ultimate right. There were vacancies in the society which were filled, and that led to construction of flats for

which amounts were paid by these occupants who cannot be called unauthorized occupants. The flats too were allotted to them by the Society.Â

At this length of time therefore, it cannot be said that at the behest of writ petitioners (who did not pay more than nominal amount) that those in

occupation who were granted flats by the Society itself discontinued to held it illegally.Â

11 It is evident that the main judgment of this Court (dated 23.02.2016) was the culmination of a series of orders that had required the eviction of

those who could not have been allotted the residential flats constructed by the respondent-Society. The writ petitioners’ claim with respect to

their illegal exclusion from the draw of lots was upheld by the Registrar and confirmed by this Court in a serious of orders. The judgment dated

23.02.2016 was therefore to give effect to the orders which had attained finality with respect to the writ petitioners’ claim to the flats.  The

efforts by these non-parties â€" many of whom have been represented during the course of proceedings which were set aside but to no avail

especially the writ petitions were rejected.  In fact, the non-parties were even asked to vacate the premises and granted time for the purpose.Â

It is only by the last order of the Supreme Court (dated 21.07.2017) that the sequence of directions contained in this Court’s judgment was

referred so to say. The non-parties were given time to vacate till such time the Registrar could finalize the draw of lots. The Supreme Court has

not altered the directions or modified the findings; consequently, it cannot be contended that the applicant/writ petitioners have no right. The repeated

findings of the court have been that they are the injured party, excluded deliberately and unfairly from the allotment and the occupants, whose names

and flats stand identified, are beneficiaries.Â

12 From the above discussion, it apparent that the substantive rights of the parties have been settled once for all. The only thing left for the

Registrar is to finalize the list of names â€" which too is clearly indicated in the second Annexure of the affidavit, indicated in Para-12(3) of the

judgment dated 23.02.2016 and ensure that a draw of lots for the appropriate category of flats among that list of names is held. The draw of lots

shall be in respect of the flats that are under occupation by the 27 individuals who could not have been granted any allotment and whose names are

also part of the record and spelt out. As this Court discerns, there is nothing complicated nor does the exercise entail great deal of effort or exertion.

The applicants appear to be justified in saying that the Registrar is indulging in delaying tactics.

13 Given that the Registrar of Cooperative Societies has hardly indicated any time frame within which the exercise of finalizing draw of lots would be

carried out and also having regard to the fact that the judgment of this Court had attained finality for over 2½ years (further that more than 1 year

and 2 months elapsed since Supreme Court order dated 21.07.2017), the Registrar of Cooperative Societies is hereby directed to strictly comply with

the judgment and orders of this Court and carry out the draw of lots within six weeks from today. The date time and venue of the draw of lots shall

be appropriately given to the concerned parties. Upon the draw of lots, necessary and consequential steps to ensure that the flats are handed over

to the fresh allotees (i.e. such as writ petitioners and members who were excluded wrongly from participation in the earlier draw of lots) by evicting

those who are in occupation should be completed within eight weeks from the draw of lots. The Registrar shall be held personally responsible and

made to account in the event of failure, through appropriate proceedings by this court.Â

14 List for reporting compliance with the above directions on 10.12.2018. The applications are allowed in these terms.Â

Order dasti under signatures of court master. Â