Swayam Sidha Co-Op.Group Housi v. The Financial Commissioner,Del

MADAN B. LOKUR, J.

The question for our consideration is whether the mere membership of a deceased member of a cooperative group housing society can be inherited by his nominee, who is otherwise ineligible to be a member of that society. Our answer to this question is in the negative in view of the decision of the Supreme Court in Gayatri De v. Mousumi Cooperative Group Housing Society & Ors., AIR 2004 SC

2271.

¶2The Petitioner is a cooperative group housing society and one of its objects is to acquire land on lease for development from the slum wing of the Delhi Development Authority and construction of residential houses or flats for allotment to its members. The membership of the Petitioner-Society is restricted only to widows having an income which does not exceed Rs.1,500/- per month from all sources.

¶3The mother of Respondent No. 3, Smt. Ganesh Devi, was a widow who satisfied the eligibility requirements for membership as per the Bye-Laws of the Petitioner-Society. As such, she was made a member of the Petitioner-Society. However, before she could be allotted a flat, she passed away leaving her son (Respondent No. 3) as her nominee.

¶4Respondent No. 3 sought to take over the membership rights of his deceased mother but the Petitioner-Society did not accept his membership since he was not eligible.

¶5On these broad facts, Respondent No. 3 filed Complaint No. 2471/1992 before the Consumer Dispute Redressal Forum (District Forum-II). By an order dated 13th July, 1994, the District Consumer Dispute Redressal Forum came to the conclusion that Respondent No. 3 was not eligible to be a member of the Petitioner-Society and, therefore, his complaint was devoid of any merit. We are told that the order passed by the District Consumer Dispute Redressal Forum has attained finality.

¶6Not being satisfied with the above decision, Respondent No. 3 raised a dispute before the Registrar, Cooperative Societies claiming membership of the Petitioner-Society. We are not concerned with the first round of litigation that took place before the Registrar but eventually by an order dated 30th November, 2000 (passed in the second round) the Registrar came to the conclusion that Respondent No. 3 was entitled to step into the shoes of his deceased mother and was, therefore, entitled to membership of the Petitioner-Society.

¶7Feeling aggrieved, the Petitioner-Society filed a revision petition under Section 80 of the Delhi Cooperative Societies Act, 1972

being Case No. 24/2001-CA. The revision petition came to be dismissed by the Financial Commissioner by the impugned order dated 15th February, 2001.

¶8The only contention urged before us by learned counsel for the Petitioner is that membership of the Petitioner-Society was restricted to widows who have an income of less than Rs.1,500/- per month from all sources. Respondent No. 3 is not a widow (being a male) and is also earning well over Rs.1,500/- per month as a bank official. The purpose of setting up the Petitioner-Society was to assist indigent and homeless widows and Respondent No. 3 does not fall in this category by any stretch of imagination. On the other hand, the submission of learned counsel for Respondent No. 3 was that her client was entitled to step into the shoes of his deceased mother being her nominee, and he was merely seeking to enforce this entitlement that was available to him.

¶9In our opinion, the dispute is really covered by the decision of the Supreme Court in Gayatri De v. Mousumi Cooperative Housing Society Ltd.& Ors, AIR 2004 SC 2271. There are in fact two situations that can arise in a case such as the present. The first is where the

deceased member has not been allotted any plot or flat and is merely a member of a society. The second situation is where a deceased member has been allotted a plot or flat by virtue of his or her membership of a society.

¶10In the first situation as mentioned above, there is no interest of a deceased member that can devolve on a nominee. It is merely a membership of a society and this cannot be termed as the estate of the deceased which can be inherited by the legal heirs of the deceased. A somewhat parallel situation would be a membership to a club or an association. The death of a member of a club or an association does not confer any entitlement on any of his legal heirs to membership of that club or association. In the second situation the allotment of a plot or flat is an interest that can devolve upon the legal heirs of a deceased. This is what has been held in Gayatri De. We may note that we have followed Gayatri De in a recent decision rendered by us in Manmohan Nath N. Puri (Deceased) through L.Rs. v. Shri Madan Jha and Ors. (WP(C) No.182/1990 decided on 18th March, 2009). In another Division Bench decision being Pran Nath Mallick v. Dr. Netar Prakash Mallick & Ors., 2000 III AD (Delhi) 843, a Division Bench dealt with the second

situation mentioned above and concluded that after allotment is made, legal rights get vested in the member and the society cannot stop inheritance of those rights on the legal heirs of the deceased on the plea that such a person is not a member of the society. Of course, this decision would not be applicable to the first situation that we are concerned with but is being mentioned only to indicate the two distinct situations that can arise.

¶11In view of the above, in our opinion Respondent No.3 could not succeed to the mere membership of his deceased mother, more particularly on the facts of this case because Respondent No.3 did not satisfy the eligibility conditions laid down in the Bye-Laws of the Petitioner-Society. We may note for the record that learned counsel for the Petitioner contended before us that the decision of the District Consumer Dispute Redressal Forum having attained finality, Respondent No.3 is bound by that decision and cannot agitate the claim all over again in a different forum. We are not going into this aspect of the matter because even otherwise on merits we are of the view that the impugned orders passed by the Registrar, Cooperative Societies and the Financial Commissioner are not sustainable in law.

¶12The writ petition is allowed. No costs.

MADAN B. LOKUR, J

May 08, 2009

SIDDHARTH MRIDUL, J Kapil/vk

Certified that the corrected copy of the judgment has been transmitted in the main Server.

* HIGH COURT OF DELHI : NEW DELHI + Writ Petition (Civil) No. 4209 of 2001 Judgment reserved on: April 20, 2009 % Judgment delivered on: May 08, 2009 Swayam Sidha Cooperative Group Housing Society 6, Bhagwan Dass Road New Delhi. Through its Joint Administrator: Ms. Vidya Prabhadayal Col. B. Kumar (Retd.) …Petitioner Through Ms.Rachna Joshi Issar with Mr.Shailendra Kumar, Advs. Versus 1. The Financial Commissioner, Delhi 5, Shamnath Marg Civil Lines Delhi. 2. The Registrar, Cooperative Societies Government of N.C.T. of Delhi Old Court Building, Parliament Street New Delhi-110001. 3. Sh. R.S. Bairva S/o Late Shri Kana Ram R/o Flat No. 92 (Type-II) Gandhi Sadan, NDMC Flats Mandir Marg, New Delhi. 4. Ministry of Employment, Social Welfare, Labour and Scheduled Caste & Scheduled Tribes Government of N.C.T. Delhi New Secretariat I.P. Estate, New Delhi. …Respondents Through Ms. Sujatha Kashyap, Adv. for Respondent No. 1. Ms.Indrani Ghosh, Adv. for LRs of Respondent No. 3. Coram: HON'BLE MR. JUSTICE MADAN B. LOKUR HON'BLE MR. JUSTICE SIDDHARTH MRIDUL 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest?