Extract from Sharma Commission

Page 15     first report

“ But before the Society had licence to develop plots ,in anticipation of the license ,it held a draw of lots for allotment of plots,on 11th November 1991 and 12th April 1992 in Pearey  Lal Bhavan, Connaught Place, New Delhi and based on this draw, a priority list of members was drawn up for allotment of the 950 plots of its first licence. This list was sent by the Chairman of the Society vide his letter dated 13.03.1996 to the Director, Town & Country Planning, Haryana.

The Director Town and Country Planning, Haryana in turn issued public Notice in four news papers, The Hindustan Times and The Times of India, Delhi Editions and the Tribunes, Chandigarh edition and the Punjab Kesari   Jallandher and Delhi Editions in which he informed the General Public that the society has submitted lists of its successful members who will be allotted plots by the Society in its licenced area of licence no 3 of 1995falling in the village Wazirabad and that the said list has been displayed on the notice boards in the offices of the Deputy Commissioner, Gurgaon, the Senior Town Planner, Gurgaon and the District Town Planner, Gurgaon.

This list, therefore, had the approval of the Government of Haryana.

Page 15/38 of new report

They should now be considered for priority allotment of plots based on that list provided they had made full payment .

This change adopted by the commission is not acceptable simply because it is against the principle of seniority and it has not been approved by General body meeting. Most importantly commission is devoid of such power to make /decide principle of seniority. Here commission has acted like Appellate  Authority which it is not.

Page 29  of 38 of second report

The plot wise break up is as follows.

Sq yard                                                                       plots

1. 100                                                                    78
2. 250                                                                  170
3. 500                                                                    24
4. 700                                                                      nil
5. 1000/1250                                                            2

Facts of the case

That the criteria for allotment /possession of the plots was decided as per the resolution passed in the General Body Meeting in the year 1996 wherein criteria from Seniority was laid ,which is reproduced below:-

Page 5 of petition 13/2010 RCS Court

“Seniority of Allotment:- The development of group housing in the Cooperative Scheme being dependant on self-financing by the members, the principle of first-come first serve, therefore, decides the seniority of allotment of plots to any members in Haryana. The defaulted members automatically loose both seniority of allotment and right to have a plot in the concerned phase/project.”

Because the Hon’ble Supreme Court in Myurdhwaj Cooperative Officer, Delhi Cooperative Tribunal & others [1998] RD-SC 329 observed that:-

Hon’ble   Supreme Court in  MAYURDHWAJ COOPERATIVE GROUP HOUSING SOCIETY LTD SC 329 (14 July1998) Annexure – 16

Relevant extract of judgment

Page 3

.. In our opinion, therefore, the most fair and equitable method of drawing up the list of eligible members for allotment of remaining 38 flats of category C  could be to draw up the list according to the date of payment of the full call money by the members concerned… ”

Merely because persons who is at serial No. 1, for example has paid money one week after a person who became a      member many years thereafter should not  be a reason for giving higher weightage to the date of payment.

Page 4

” … The society had to lay down a reasonable criteria for finalising the list of members. The criteria which the society adopted was that all payments having been    made in accordance with the demand which has been raised and by keeping the options and the seniority into consideration, the list was prepared as on the cut-off date of 15th May,1987. We cannot find any infirmity in the principle so adopted. It is essential       for the Cooperative Society to decide as to what is the principle which it should follow in etermining or finalising the list of the members to whom flats are to be allotted.

. In other words, it is left on the discretion of a Society depending on the facts and circumstances of each case.

Page 8

One Society may be in a sound position and other in limping position thus may give to its member larger or lesser benefits as the case may be.  Thus it is always open to a Society to lay down its own principle for making such allotments.

It is not proper even for the courts to interfere with such a discretion, except when it is arbitrary, irrational, malfide, against any statutory provisions or against orders having force of law. This will not bepossible if strict principle of seniority is followed. However it is open for a Society to give weightage to seniority depending on facts of each case. Within permissible limits it is always open to lay down its principle which  is just, fair and proper.

Page 9

. It may be where a very senior defaulting member paid the balance amountonly one week after very junior member paid the full amount, it is open for a Society to resolve as it deem fit and proper by giving weightage to the seniority.

That respondent no. 4 Commission submitted its final report dated 05.08.2017 and a continuation thereof was submitted in 2018. A perusal of the report shows that it inter alia recommended the revision of list based solely upon the criterion of payment of complete amounts for the plot irrespective of inter se seniority amongst members.

It is pertinent to note that the Commission did not have the power to determine the inter se seniority or change of the manner of its determination, and the same could only be done by the General Body of respondent no. 3 Society. Through the impugned report, the Commission acted as an appellate body over the General Body which is not permissible under the provisions of 1984 Act. It is reiterated that the Commission is merely a fact-finding body and its recommendations are non-binding, and required to be considered and acted upon by General Body of respondent no. 3 (if approved through voting).

(1)

CWP-24821-2018

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CWP-24821-2018

Date of Decision: November 14, 2018

A.K. Kaul

…Petitioner

Versus

The State of Haryana & others

…Respondents

CORAM: HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH

Present: Mr. C.M. Munjal, Advocate,

for the petitioner.

*****

AUGUSTINE GEORGE MASIH , J. (ORAL)

It is the contention of the learned counsel for the petitioner,

with reference to the order dated 20.12.2012 (Annexure P-5) passed by this

Court in CWP No.24583 of 2012, that the petitioner is entitled to the benefit

of allotment of a plot especially in the light of the exercise which has been

carried out by the respondents in pursuance to the said directions, whereby,

a report of the Saraswati Kunj Commission was submitted, which has been

accepted. The said Commission has ultimately prepared a list of members

of the Society, who have been held entitled to the allotment of plots of 500

square yards. The name of the petitioner figures at Sr. No.18 in the said list.

The respondent – Society is bypassing the seniority list as prepared and is

allotting the plots at random, one of the instances which has been pointed

out is that of one Mohal Lal Arora – respondent No.8 whose name figures at

Sr. No.52, is being allotted a plot at priority keeping in view the fact that a

direction has been issued by this Court to consider his claim for allotment of

a plot. Merely because a person approached this Court would not entitle to

any priority especially in the light of the observations made by this Court in

its order dated 20.12.2012 (Annexure P-5), in pursuance whereof, seniority

list has been prepared. Highlighting this aspect, petitioner has submitted a

representation dated 20.07.2018 (Annexure P-10) to respondents No.1 to 3,

6 and 7. Despite that, no decision on the representation of the petitioner has

been taken.

Counsel for the petitioner contends that the petitioner, at this

stage, would be satisfied if a direction is issued to the Registrar,

Cooperative Societies, Haryana – respondent No.2 to consider and decide

the representation dated 20.07.2018 (Annexure P-10) and conveyed the

decision to the petitioner and the Society, within some specified time.

In the light of the statement made by the counsel for the

petitioner, the present writ petition is disposed of without going into the

merits of the case as has been projected by the counsel for the petitioner or

commenting thereon, with directions to the Registrar, Cooperative Societies,

Haryana – respondent No.2 to consider and decide the representation dated

20.07.2018 (Annexure P-10) within a period of six weeks from the date of

receipt of certified copy of this order. The decision so taken be conveyed to

the petitioner and Society forthwith.

It is made clear that in case the Saraswati Kunj Commission has

indeed prepared a seniority list, the same be not bypassed and the plot

should be offered according to that seniority list especially in the light of the

observations of this Court in its order dated 20.12.2012 (Annexure P-5).

(AUGUSTINE GEORGE MASIH)

Since now merit list prepared by Sharma Commission is in variance of  Hon’ble   Supreme Court in  MAYURDHWAJ COOPERATIVE GROUP HOUSING SOCIETY LTD SC 329 (14 July1998) and is now conferred by Hon,ble Panjab High Court,any change needed concurrence of High Court.

Authors

Purnima Sadhana         9871003866

Neelam K C Gupta         9463445616

Madhusudan Sharma    9810578200

Yogesh Bajaj                    9811771931

Editor

N K Bhutani                     7982928766