Judgment:
IN THE HIGH COURT OF DELHI AT NEW DELHI * % + W.P.(C) 495/2007 SUBHASH KWATRA + W.P.(C) 7225/2013 RACHIT SAHI THE REGISTRAR OF COOPERATIVE SOCIETIES & ANR. Date of Judgment 13.09.2018 versus ........ Petitioner
versus ....... RESPONDENTS
......... Petitioner
REGISTRAR OF CO-OPERATIVE SOCIEITES & ORS. ........ RESPONDENTS
Present: Mr. A.K. Singla, Sr. Adv. with Mr. Abhimanyu & Mr. Ankit Panwar, Advs. for petitioner. Mr. Santosh Kumar Tripathi, ASC for GNCTD with Mr. Jayadev Sarangi, RCS and Mr. Jyoti Taneja, for GNCTD. Mr. Arjun Pant for DDA. Mr. Vivek Kumar Tandon with Ms. Mamta Tandon for Society. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE A. K. CHAWLA S. RAVINDRA BHAT, J.
WP(C) No.495/2007 & WP(C) 7225/2013 Page 1 of 10 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. 2 The Court had noticed that the writ petitioners were the members of the Saraswati Cooperative Group Housing Society – respondent (hereafter referred to as “the Society”). 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 Act”). 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 co- operative 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. Especially, the R.A. was disposed of against them with some observations. 3 In its judgment dated (of 23.02.2016) in para 7, the Court had extracted the previous order which listed out the individuals – totaling 29 WP(C) No.495/2007 & WP(C) 7225/2013 Page 2 of 10 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. (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-of- lots. (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 today”. WP(C) No.495/2007 & WP(C) 7225/2013 Page 3 of 10 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: that 6. 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 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 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. the Court earlier 7. 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.
8. 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 WP(C) No.495/2007 & WP(C) 7225/2013 Page 4 of 10 the 29 legitimacy or occupation of 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.
9. 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.
10. 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 following ORDER
Permission to file the special leave petition is granted. Delay condoned. The special leave petition is dismissed. WP(C) No.495/2007 & WP(C) 7225/2013 Page 5 of 10 However, six months, time is granted to the petitioners to vacate the suit premises on filing the usual undertaking within four weeks from today.” 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.” With the aforesaid directions, I.A. Nos.23-24/2017 filed in SLP(C) Nos.1718-1719/2017, stand disposed of. 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. 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. 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. In view of the above, these applications stand disposed of.” WP(C) No.495/2007 & WP(C) 7225/2013 Page 6 of 10 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. 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. 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 WP(C) No.495/2007 & WP(C) 7225/2013 Page 7 of 10 unauthorized occupants. The flats too were allotted to them by the Society. 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. 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 – 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. 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 WP(C) No.495/2007 & WP(C) 7225/2013 Page 8 of 10 allotment and the occupants, whose names and flats stand identified, are beneficiaries. 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 – 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 WP(C) No.495/2007 & WP(C) 7225/2013 Page 9 of 10 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. 14 List for reporting compliance with the above directions on 10.12.2018. The applications are allowed in these terms. Order dasti under signatures of court master. SEPTEMBER13 2018 S. RAVINDRA BHAT (JUDGE) A.K.CHAWLA (JUDGE) WP(C) No.495/2007 & WP(C) 7225/2013 Page 10 of 10