NISHA SINGLA versus ADARSH COLONY COOPERATIVE HOUSE BUILDING SOCIETY LTD. & ORS. on 16 April 2019

[2019] 6 S.C.R. 121

NISHA SINGLA

v.

ADARSH COLONY COOPERATIVE HOUSE BUILDINGSOCIETY LTD. & ORS.

(Civil Appeal Nos. 3963-3965 of 2019)

APRIL 16, 2019

[DR. DHANANJAYA Y CHANDRACHUD AND

HEMANT GUPTA, JJ.]

Punjab Co-operative Societies Act, 1961: ss. 55 and 56 –Allotment of plot – Society established to provide residential plotsto its members – Case of the appellant, a founder member of theSociety that possession of plot so allotted to her earlier by theadministrator and later re-allotted by the society have been illegallyallotted in favour of others – Held: Possession of the plot measuring250 sq. yards has not been handed over to the appellant – Appellantscannot be deprived of a plot allotted to her merely on the basis thatshe has not made any grievance in respect of possession of the plotallotted on the basis of technicities – Thus, in the absence of anydetermination of such fact and to do complete justice in terms ofArt. 142, issuance of direction to the Registrar of CooperativeSocieties to conduct an enquiry – If such allotment is found to bemade, the appellant would be entitled to possession of the plot of250 sq. yards – If it is found that the plot allotted to the appellant isnot available, the Registrar or its delegate to pass necessary orderto redress the grievance of the appellant – Constitution of India –Art. 142.

Disposing of the appeals, the Court

HELD: Appellant has never raised a grievance that shehas not been delivered possession of the plot allotted but, thefacts on record, particularly on the basis of counter-affidavit ofthe respondents, leaves no manner of doubt that the possessionof plot allotted to the appellant who is a founder member sincethe year 1975 has not been given to the appellant. Thus, it isfound that the possession of the plot measuring 250 sq. yardshas not been handed over to the appellant as projected before

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122SUPREME COURT REPORTS

Athis Court. The appellants cannot be deprived of a plot allottedto her merely on the basis that she has not made any grievancein respect of possession of the plot allotted on the basis oftechnicalities. Therefore, in the absence of any determination ofsuch fact and to do complete justice in terms of Article 142 of theConstitution, it is deemed appropriate to direct the Registrar ofBCooperative Societies, Punjab to conduct an enquiry eitherhimself or through such officer as he may deem fit to find out;whether the appellant was allotted plot by the Administrator, andthat after such allotments having been set aside on 17.07.1984,whether fresh allotment was made to the appellant by the Society.CIf such allotment is found to be made, the appellant would beentitled to possession of the plot of 250 sq. yards. If it is foundthat the plot allotted to the appellant is not available, the Registraror its delegate shall pass such necessary order to redress thegrievance of the appellant after giving an opportunity of hearing to the affected persons. In case, there is a suitable plot available,Dthen the Registrar or its delegate shall allot a suitable plot out ofthe plots allotted to the Society located in BRS Nagar. Thenecessary exercise shall be completed by giving opportunity ofhearing to the affected persons preferably within the stipulatedperiod. [Para 17-20][129-B-G]ECIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3963-3965 of 2019.

From the Judgment and Order dated 16.05.2011 of the HighCourt of Punjab and Haryana at Chandigarh in C.M. Nos. 2974-2976of 2011 in CWP No. 19358 of 2008.F

Varinder Kumar Sharma, Mohd. Shahid Hussain, Advs. for theAppellant.

Gurpreet Singh, Vishnu Sharma, Advs. for the Respondents.

The Judgment of the Court was delivered byGHEMANT GUPTA, J. 1. Leave granted.

2. Challenge in the present appeals is to an order passed on16.05.2011 in the review application filed by the appellant and the orderdated 09.12.2002 passed in Writ Petition No. 19358 of 2002 by the HighCourt of Punjab and Haryana.H

3. The case has a chequered history. The appellant is one of thefounder members of the Society[1] established to provide residential plotsto its members. The Appellant deposited some amounts between12.05.1975 to 15.01.1982 for the purpose of allotment of a residentialplot. The credit balance as on 15.01.1982 is said to be Rs. 11,475/-. TheSociety made a request to the Chairman of Improvement Trust, Ludhianafor development of the land. The Improvement Trust later framed aScheme of the acquisition of land. The Society apprehended that inexecution of the Scheme framed, the Society was likely to be deprivedof the land. The Society filed a Writ Petition No. 1625/1981 before theHigh Court raising a grievance that Society has purchased some landand formed a Cooperative Society for building of houses for its membersand that the Scheme of the Improvement Trust will jeopardise the desiresof the members of the Society to own a plot for their residences. TheHigh Court passed an order on 26.11.1981 directing that the StateGovernment should find a way either by amending rules or by issuinginstructions under the existing laws for accommodating the Society.

4. It appears that the Punjab Government accepted the request ofthe Society but put a condition that the plots will be allotted to those whowere the members of the Society till 1982. Such fact is asserted in thecounter-affidavit filed on behalf of Respondent No. 1. In pursuance ofsuch decision, 281 plots in Bhai Randhir Singh Nagar, Ludhiana becameavailable to the Society for allotment to its members in the year 1983.

5. Shri C.L. Azad, Inspector House Building Board Society,Ludhiana was appointed as Administrator of the Society on 22.11.1983on the expiry of term of the Managing Committee of the Society for thepurpose of arranging the elections for the new Managing Committeeand to run the affairs of the Society under Section 26(1-D) of the PunjabCooperative Societies Act 1961.[2]

6. However, it appears that Shri C. L. Azad allotted 281 plots tothe members of the Society without framing any criterion. Such allotmentsbecame subject matter of challenge on behalf of the appellant beforeDeputy Registrar Cooperative Societies, Ludhiana in a reference of disputeunder Sections 55 and 56 of the Act.

7. The Deputy Registrar, Ludhiana cancelled the allotments madeby Shri C. L. Azad on 17.07.1984. The relevant extracts from the order 1 Adarsh Colony Cooperative House Building Society Limited, Ludhiana 2 The Act A

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Apassed for allotment of land to the members of the Society is as under:- “As it was a common dispute for the cancellation of theallotment made by the Administrator, I summoned all the partieson 17.7.1984 at 10.00 a.m. in may office for producing theirversion.

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On 17.7.1984, the case was heard jointly and about 100members came present. Sh. C.L. Jindal, Ex-Secy of the societyand Sh. Chaman Lal Azad, the Administrator also came present.The members who had attended the hearing told that theAdministrator did not adopt any criteria for the allotment of theplots.

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2. No justice has been done with those members who weremembers of the society at the time of acquisition of the land andmost of the members were not allotted the plots.

3. The letter which was written to Sh. K.K. Chadha by theAdministrator through Sh. D.N. Kapoor on 24.3.1984 a coy ofwhich has been attached. The above members were asked todeposit the balance amount and for allotment of the plots by drawof lots.

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But at the time of making the allotment of plots, it was notdone, rather the Administrator allotted the plots in an arbitrarymanner.

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4. The Administrator while making the allotment, did not keepin view the provisions of section 27(3) of the Act, under which theapproval of the Registrar is necessary, but the administrator didnot obtain any approval.

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I have inquired into all these points raised by the members andthe written statement of Sh. Chaman Lal Azad dated 18.6.84 andmade inquiries from Sh. C.L. Jindal, Ex-Secretary.

After hearing the arguments of the members and of theAdministrator of the society, I have come to the conclusion thatthe allotment was not made in a proper manner because theAdministrator did not constitute any allotment sub-committee.

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2. No criteria was adopted for allotment.

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3. The allotment has not been made in the presence of themembers & it was also not done by draw of lots.

4. The Administrator also did not obtain the approval of theRegistrar, Cooperative Societies about the allotment of plots.

5. The allotment has been made by enrolling new memberswhereas the old members who were members of the society atthe time of acquisition of land, have not been allotted the plots.

Keeping in view the above facts, I cancel the allotment madeby Sh. Chaman Lal Azad, Administrator of the society. Sh. ChamanLal Azad informed the court that the election to the managingcommittee of the society has been fixed for 8.8.84, therefore, noallotment should be made till then.

The Managing Committee should make out some criteria forthe allotment of the plots. While framing the criteria, interest ofthe members who were members at the time of acquisition ofland, should also be kept in view and the approval should beobtained from the general body.”

8. The said order was challenged in an appeal. The Joint Registrar,Cooperative Societies, Patiala allowed the appeal on 02.01.1985, but theCommissioner (Appeals), Jalandhar Division on 09.06.1988 set asidethe order passed by the Joint Registrar. Thus, the order passed by theDeputy Registrar on 17.07.1984 attained finality and continuous to bevalid and operative order.

9. In pursuance of the order passed by the Deputy Registrar asaffirmed by the Commissioner (Appeals) in Revision, a General Bodymeeting of the Society was held on 27.09.1992. In such meeting, it wasresolved to allot plots to the members. The price was fixed at Rs. 100per sq. yard for the plot size up to 300 sq. yards and Rs. 300 per sq. yardfor the plot size more than 300 sq. yards. In pursuance of such decision,the appellant gave her acceptance on 30.07.1993 by filing an affidavitbut still reserving her right for allotment of 500 sq. yards plot. The appellantsaid to the following effect:

“Please find enclosed herewith Affidavit in original as desiredby the society but reserve my right for 500 yards plot. I undertaketo pay all the amount due from me or called by the society for thecost of plot including cost of enhancement, interest if any, or any A

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Aother dues called by the managing committee towards of differinglawful expenses when called for.

That I would reimburse/pay to the society if any amount drawnby me any time. I undertake to pay all expenses/dues/enhancement/interest etc. etc. provided it is lawful or as perBRules.”

10. The appellant again raised dispute under Sections 55 and 56of the Act. The matter was considered by Additional Registrar (Credit)Cooperative Society, Punjab, wherein, the appellant sought allotment of500 sq. yards plot instead of plot of 250 sq. yards. The Additional RegistrarCheld that the appellant does not have any preferential right as such rightis alien to the concept of cooperative but in respect of the allotment of250 sq. yard’s plot, it was said to the following effect:

“Issue No. 2:- The petitioner by her conduct of accepting theallotment of plot of 250 sq. yards, has in fact admitted the legalityDof allotment of plots hence is barred to agitate this fact now. Shewas given the chance to accept the allotment which she has alreadyavailed. She never surrendered the plot allotted to her. So she isbarred to put her claim as per the principle of estoppel, as she hasalready accepted plot allotted to her. I have heard the counsels atlength and come to conclusion that in view of discussion heldEabove, there is no force in the contention of the petitioner, hencethe petition is dismissed.”

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11. Aggrieved against the order passed by the Additional Registrar,the appellant filed an appeal as contemplated under Section 68 of theAct before the Registrar, Cooperative Societies, wherein again, a findingFwas returned that the appellant had already been allotted a plot of 250sq. yards. Thus, there is no proof that the appellant has deposited anyearnest money for a bigger plot. Thus, there is no dispute regarding herclaim as made in the Petition. The Registrar held to the following effect:

“…..The petitioner had already been allotted a plot of 250 sq.yards, which she preferred to retain. She had deposited earnestmoney for the same. She did not deposit earnest money for abigger plot and thus, there was no dispute regarding her claim asmade in the present petition and earlier reference under Section55/56 before the Additional Registrar (C) Cooperative Societies.The petitioner never surrendered or offered to surrender the plot G

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already in her possession. In these circumstances, I find there isno merit in the averments made by the petitioner and, therefore,the petition is dismissed.”

12. The appellant still aggrieved against the order invoked aRevisional Jurisdiction to the State Government under Section 69 of theAct. The Revision was dismissed by holding as under:

“I have carefully considered the arguments put forth by the ld.counsel for the parties, perused the written statement filed by therespondent no. 3 and gone through the record brought before me.I find that the petitioner had deposited Rs.25000/- and she wasallotted a plot of 250 sq. yards. Later on the petitioner startedmaking a claim for 500 sq. yards plot but did not deposit anyamount with the society and therefore her claim for allotment of500 sq. yards plot is not tenable at this belated stage especiallywhen as per the counsel for the society at present there is novacant 500 sq. yards plot with the society. Moreover, most of themembers have constructed their houses on the plots allotted tothem. I also do not find any legal infirmities in the impugnedorders, therefore, the revision petition is dismissed.”

13. Aggrieved by the above order, the appellant filed Writ PetitionNo. 17742 of 2001 which was withdrawn on 23.08.2002 with liberty tofile a fresh petition after giving material facts. The fresh Writ Petition[3]filed by the appellant, was dismissed on 09.12.2002. The appellant filedCivil Appeal No. 2068 of 2006 before this Court against such orderpassed by the High Court. The Civil Appeal was dismissed on 25.01.2011giving liberty to the appellant to seek review of the order. In pursuanceof such liberty, the appellant filed Review Petition, which Review Petitionwas dismissed vide order dated 16.05.2011.

14. The appellant in the rejoinder affidavit has attached a letterdated 23.01.1985 communicating a list of members of the Society to theAdministrator, Improvement Trust, Ludhiana. The name of the appellantappears at serial no. 28 bearing Membership No. 541 to the effect thatplot no. 41-D had been allotted to her.

15. In the counter-affidavit filed by Shri C. L. Jindal – on behalfof the Society (respondent no.1), it is averred that Shri C.L. Azad allottedone plot measuring 250 sq. yards to the appellant out of 281 plots allotted 3 Writ Petition (C) No. 19358 of 2002

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Aby him as an Administrator of the Society. Thereafter, the General Houseof the Society in its meeting held on 04.04.1993 finalized the criteria forallotment of plots including the price to be paid by the members of theSociety at the rate of Rs. 100 per sq. yard for the plot size up to 300 sq.yards and Rs. 300 per sq. yard for the plot size more than 300 sq. yards.In terms of the criteria adopted, Society allotted same plots to 202Bmembers out of 281. The draw of lots were held on 09.05.1993 for theremaining plots. The appellant preferred to retain the plot which wascancelled by depositing a sum of Rs. 25,000/- at the rate of Rs. 100 persq. yards. The appellant has not deposited the amount for the bigger plotof 500 sq. yards. In the counter-affidavit, it is also averred that plot no.C41-D re-allotted to the appellant has been illegally allotted in favour ofShri Ashish Gupta son of Shri T. R. Gupta the then Honorary Secretaryof the Society and there are more than 40 other cases where plots allottedto the members have been illegally allotted. The relevant assertion inthe counter-affidavit of the Society reads as under:

D “…..The present Management filed an appeal before the FinancialCommissioner, Cooperation, Punjab challenging the order ofbifurcation, etc. The Financial Commissioner, Cooperation, Punjabpassed orders dated 17.03.2011 holding that any further allotmentof land would not be given to the second society which has beencarved out of the present society of non-allottee members. AfterEassuming the office, it was found by the present Management ofthe Society that the Plot No. 41-D in Bhai Randhir Singh Nagarwhich was re-allotted to the petitioner Smt. Nisha Singla had beenillegally swindled in favour of Shri Ashish Gupta son of Shri T.R.Gupta the then Hony. Secretary. There are more than 40 otherFcases where plot allotted to the members had been illegallyswindled.”

16. In this factual background, the argument of the learned counselfor the appellant is that the appellant has not been given possession ofplot bearing no. 41-D and that she has been running from pillar to postGfor the last four decades. Even if, the appellant is not entitled to 500 sq.yards plot, but the entitlement of the appellant for 250 sq. yards is notdisputed therefore, the appellant is entitled to possession of the plot soallotted to her earlier by the Administrator and later re-allotted by theSociety. Since the possession of the plot has not been handed over,therefore, the entire proceedings have been conducted in a manner whichH

is prejudicial to the appellant as the genuine grievance of the appellanthas not been addressed.

17. We have heard learned counsel for the parties and find thatthe appellant has never raised a grievance that she has not been deliveredpossession of the plot allotted but, the facts on record, particularly on thebasis of counter-affidavit of the respondents, leaves no manner of doubtthat the possession of plot allotted to the appellant who is a foundermember since the year 1975 has not been given to the appellant.

18. Thus, we find that the possession of the plot measuring 250sq. yards has not been handed over to the appellant as projected beforethis Court. The appellants cannot be deprived of a plot allotted to hermerely on the basis that she has not made any grievance in respect ofpossession of the plot allotted on the basis of technicities. Therefore, inthe absence of any determination of such fact and to do complete justicein terms of Article 142 of the Constitution, we deem it appropriate todirect the Registrar of Cooperative Societies, Punjab to conduct an enquiryeither himself or through such officer as he may deem fit to find out; (i)whether the appellant was allotted plot by Shri C. L. Azad, theAdministrator, and (ii) that after such allotments having been set asideon 17.07.1984, whether fresh allotment was made to the appellant bythe Society.

19. If such allotment is found to be made, the appellant would beentitled to possession of the plot of 250 sq. yards. If it is found that theplot allotted to the appellant is not available, the Registrar or its delegateshall pass such necessary order to redress the grievance of the appellantafter giving an opportunity of hearing to the affected persons. In case,there is a suitable plot available, then the Registrar or its delegate shallallot a suitable plot out of the plots allotted to the Society located in BhaiRandhir Singh Nagar.

20. We hope that the necessary exercise shall be completed bygiving opportunity of hearing to the affected persons preferably within aperiod of four months from the date certified copy of the order is producedbefore the Registrar of Cooperative Society Punjab. With the saiddirections, the appeals stand disposed of.

Nidhi Jain

Appeals disposed of.

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