# Pradeep Kumar v. The Co Operative Tribunal U.P. & Ors

- **Citation:** (2024) 3 ILRA 2080
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-12
- **Case number:** Writ-C No. 1001289 of 2014
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-v-the-co-operative-tribunal-u-p-ors-51629
- **Pages:** 34

## Headnote

C.S.C., Ausaf Ahmad Khan, Aushaq Ahmad
Khan,
Ganga
Singh,
Pushkar
Baghel,
Raghvendra Singh, Somesh Tripathi

Civil Law - U.P. Co-operative Societies Act,
1965 - Sections 28, 29, 35 & 70 -
Constitution Of India,1950 - Article 226 -
Cancellation of Allotment and Membership -
Cooperative
Tribunal
-
Writ
Petitions
-
Cancellation of allotments and memberships of
original allottees by Jivan Bima Rashtriya
Sahkari Avas Samiti Ltd. for default in payment
of escalated flat costs upheld. Society issued
multiple demand notices and reminders (dated
05.04.2004,
24.06.2004,
19.07.2004,
06.08.2004) to original allottees, who failed to
comply, leading to cancellation by Administrator
and
subsequent
ratification
by
elected
Committee of Management on 15.05.2005.
Dahiya Committee report on cost escalation,
approved by Assistant Housing Commissioner,
binding as 100 out of 120 members complied.
Administrator's authority to cancel allotments for
default, a day-to-day administrative function,
valid
under
Section
29(6);
subsequent
ratification by elected Committee cured any
irregularity.
Original
allottees'
failure
to
challenge
membership
termination
or
subsequent allottees' membership, coupled with
acceptance of refunded share money, bars their
claim. Tribunal's findings of inadequate notice
and non-binding Dahiya Committee report
perverse, ignoring evidence of repeated notices
and majority compliance. Impugned orders
dated 27.01.2014 by Cooperative Tribunal and
arbitral awards set aside for misappreciation of
facts and material. (Paras 34-49, 50-93, 94-104)

Writ Petitions Allowed.

Case Law Cited:

## Text

_Characters 0–39,708 of 116,365. This is a partial read: ask again with offset=39708 for what follows._

2080 INDIAN LAW REPORTS ALLAHABAD SERIES
application, no joint holding of any bank
account is disclosed though they claim to
be living in relationship since August,
2022. The petitioners does not even desire
to get married in future as no application
for marriage is moved by the petitioners
before the authorities concerned so far.
Petitioners have not produced any evidence
to show that their relationship is of a
permanent nature.

18. Petitioner No. 2 is still a student
of final year of polytechnic court as
disclosed in paragraph-7 of the writ
petition.

19. Hence, in view of the foregoing
discussions, the court is not inclined to
exercise its extraordinary power under
Article 226 of the Constitution and to
command to the authorities to provide
protection to the relationship of the
petitioners.

20. The petition lacks merits and is
accordingly dismissed.
----------
(2024) 3 ILRA 2080
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.03.2024

BEFORE

THE HON'BLE JASPREET SINGH, J.

Writ-C No. 1001289 of 2014
alongwith other connected cases

Pradeep Kumar ...Applicant
Versus
The Co Operative Tribunal U.P. & Ors.
 ...Opp. Parties

Counsel for the Applicant:
Anupras Singh, Akshay Agarwal, Anupras Singh
Counsel for the Opp. Parties:
C.S.C., Ausaf Ahmad Khan, Aushaq Ahmad
Khan,
Ganga
Singh,
Pushkar
Baghel,
Raghvendra Singh, Somesh Tripathi

Civil Law - U.P. Co-operative Societies Act,
1965 - Sections 28, 29, 35 & 70 -
Constitution Of India,1950 - Article 226 -
Cancellation of Allotment and Membership -
Cooperative
Tribunal
-
Writ
Petitions
-
Cancellation of allotments and memberships of
original allottees by Jivan Bima Rashtriya
Sahkari Avas Samiti Ltd. for default in payment
of escalated flat costs upheld. Society issued
multiple demand notices and reminders (dated
05.04.2004,
24.06.2004,
19.07.2004,
06.08.2004) to original allottees, who failed to
comply, leading to cancellation by Administrator
and
subsequent
ratification
by
elected
Committee of Management on 15.05.2005.
Dahiya Committee report on cost escalation,
approved by Assistant Housing Commissioner,
binding as 100 out of 120 members complied.
Administrator's authority to cancel allotments for
default, a day-to-day administrative function,
valid
under
Section
29(6);
subsequent
ratification by elected Committee cured any
irregularity.
Original
allottees'
failure
to
challenge
membership
termination
or
subsequent allottees' membership, coupled with
acceptance of refunded share money, bars their
claim. Tribunal's findings of inadequate notice
and non-binding Dahiya Committee report
perverse, ignoring evidence of repeated notices
and majority compliance. Impugned orders
dated 27.01.2014 by Cooperative Tribunal and
arbitral awards set aside for misappreciation of
facts and material. (Paras 34-49, 50-93, 94-104)

Writ Petitions Allowed.

Case Law Cited:

1. Maharashtra St. Mining Corporation Vs Sunil
(2006) 5 SCC 96 (Paras 90-91)

2. Jithendernath Vs Jubilee Hills Coop. House
Building Society (2006) 10 SCC 96 (Para 103)

3. Mayurdhwaj Cooperative Group Housing
Society
Ltd.
Vs
Presiding
Officer,
Delhi
Cooperative Tribunal (1998) 6 SCC 39 (Para 46)
3 All. Pradeep Kumar Vs. The Co Operative Tribunal U.P. & Ors.
2081
4. Parmeshwari Prasad Gupta Vs U.O.I. (1973) 2
SCC 543 (Paras 90-91)

5. High Court of Judicature for Rajasthan Vs P.P.
Singh (2003) 4 SCC 239 (Paras 90-91)

6. National Institute of Technology Vs Panna Lal
Choudhury (2015) 11 SCC 669 (Para 91)

7. New Okhla Industrial Development Authority
Vs Arvind Sonkar (2008) 11 SCC 313 (Para 23)

8. Hansa VS Gandhi Vs Deep Shankar Roy
(2013) 12 SCC 776 (Para 23)

9. Geeta Vs Financial Commissioner, Govt. of
NCT Delhi 2023 INSC 316 (Para 47)

10. Bhavnagar University Vs Palitana Sugar Mill
(P) Ltd. (2003) 2 SCC 111 (Para 92)

11. Joint Registrar of Cooperative Societies
Kerala Vs T.A. Kuttappan (2000) 6 SCC 127
(Para 31)

12. K. Shantharaj Vs M.L. Nagaraj (1997) 6 SCC
37 (Para 31)

13. Modern Dental College and Research Centre
Vs St. of Madhya Pradesh (2016) 7 SCC 353
(Para 31)

14. Neelam Jain Vs Cooperative Tribunal, U.P.
Writ-C No. 18732 of 2009, decided on
22.04.2011 (Para 31)

15. Navita Jain Vs Cooperative Tribunal Writ-C
No. 54588 of 2008, decided on 14.05.2010
(Para 31)

(Delivered by Hon'ble Jaspreet Singh, J.)

1. This is a batch of 24 petitions
preferred
under
Article
226
of
the
Constitution of India assailing the order
dated 27.01.2014 passed by the Cooperative Tribunal, Uttar Pradesh whereby
the award passed by the Arbitrator in
proceedings under Section 70 of the U.P.
Co-operative
Societies
Act,
1965
(hereinafter referred to as the Act of 1965)
has been affirmed.

2. The issue involved in the aforesaid
24 petitions is common and is based, by
and large, on almost similar facts and the
issue of law involved in all petitions is
same, hence, all petitions were connected
and were heard together and are being
decided by this common judgment.

3. To put the controversy in a
perspective, the Court shall be considering
the facts from the leading petition bearing
No.1001289 (M/S) of 2014 alongwith W.P.
bearing No. 1003095 (MS) of 2014.
However, the submissions of the respective
counsel for the parties which are almost the
same in all petitions have been noticed and
wherever necessary facts of the other
petitions is required it will also be noticed
at the appropriate place.

4. Primarily, the basic facts which are
common in all the petitions are that the
private respondent were the initial allottees
of the flats in Jivan Bima Rashtriya Sahkari
Avas
Samiti
Ltd,
GH-7
Sector-6
Vasundhara Ghaziabad. Since they were
defaulters and did not make the necessary
payment,
hence
the
Committee
of
Management of the Society took a decision
to cancel the allotment of the original
allottees and thereafter the flats were
allotted to the present petitioners who are
the subsequent allottees and are in
possession. They have also got their names
duly mutated in the relevant municipal
records
and
have
been
paying
the
municipal taxes and utility bills.

5. The private respondents being
aggrieved against the allotment made in
favour of the petitioners, at different stages
filed petitions under Section 70 of the Act,
2082 INDIAN LAW REPORTS ALLAHABAD SERIES
1965. However in some cases, the private
respondents had first instituted civil suits
which later came to be dismissed as
withdrawn and thereafter they too, filed
petitions under Section 70 of the Act, 1965.
In most of the cases, the subsequent
allottees, initially, were not made as a party
before the Arbitrator and award was
passed. The impact of which was that the
allotment of flats made in favour of the
subsequent allottees was cancelled.

6. The subsequent allottees then
assailed the said awards before the Cooperative Tribunal and who dismissed the
appeals which prompted the subsequent
allottees to approach this Court by means
of the instant writ petitions.

7. A Co-ordinate Bench of this Court
by means of order dated 03.03.2014 while
issuing notice to the respondents had
granted an interim order in pursuance
whereof the possession of the petitioners of
the writ petitions has been protected and
the same is reproduced as under:-

"1. Sri J.N. Mathur, learned
Senior Advocate, Assisted by Sri Anupras
Singh,
Advocate,
appearing
for
the
petitioner, contends that respondent no.5
did not pay the dues towards Society for
constructions of the flat despite repeated
reminders sent to the said respondent.
Details of default and reminders given by
the Society to respondent no.5 have been
mentioned in para nos.16 to 18 of the writ
petition.

2. Sri Mathur further submits that
that by virtue of order/refund, Annexure13, vide which share money of the
respondent
no.5
was
returned,
even
membership
of
the
respondent
was
cancelled. Membership of the respondent
has not been restored either in arbitral
award or by the tribunal, although decision
has been rendered against the petitioner.
Without reviving membership of respondent
no.5, no benefit can flow to respondent
no.5.

3. Learned counsel has further
impressed on the Court that the petitioner
has deposited the entire amount for the flat.
The petitioner was made a member of the
Society and was given possession of the
flat. The petitioner continues to live in the
flat. The findings returned by the arbitrator
and the Tribunal to the effect that the
respondent no.5 was not given sufficient
opportunity, is perverse.

4. Sri Amit Swami, Advocate,
appears for respondent no.5 and has filed
his power-of-attorney, which is taken on
record.

5. Issue notice to respondent
nos.3 and 4 by speed post only.

6. Let respondent nos.3 and 4 file
their counter affidavits within two weeks.
Rejoinder affidavit within one week thereof.

7. Considering the nature of lis,
the respondent-Society is also directed to
address the court as to whether more
land/plots are available to be allotted to the
private respondent no.5/petitioner.

8. List on 28.3.2014.

9. In the meantime, operation of
impugned orders (Annexure nos.1 and 2)
shall remain stayed. "

8. During pendency of these petitions,
in some case, some petitioners had expired
and
upon
application
moved
for
substitution, their legal heirs have been
brought on record. However, for the sake of
convenience, this Court shall refer to the
parties as they were originally impleaded in
the writ petitions.

9. The impugned orders passed by the
Arbitrator and affirmed by the Cooperative
3 All. Pradeep Kumar Vs. The Co Operative Tribunal U.P. & Ors.
2083
Tribunal,
Uttar
Pradesh
have
been
challenged by the subsequent allottees and
also by the Jiwan Beema Sahkari Awas
Samiti Ltd. The writ petition has been filed
by the subsequent allottee Sri Pradeep
Kumar (bearing W.P. No. 1001289 (MS) of
2014) and relating to the order against
Pradeep Kumar, the writ petition filed by
the Society is bearing W.P. No. 1003095 of
2014; similarly, writ petition filed by the
subsequent allottee Sri Rajneesh Parashar is
bearing W.P. No. 1001368 (MS) of 2014
and in the said case, the writ petition filed
by the Society is bearing W.P. No.
1003093 of 2014; writ petition filed by the
subsequent allottee Sri Bhagwan Singh
Rana is bearing W.P. No. 1001549 (MS) of
2014 and in the said case, the writ petition
filed by the Society is bearing W.P. No.
1001926 of 2014; writ petition filed by the
subsequent
allottee
Sri
Dhananjay
Bhardwaj is bearing W.P. No. 1001518
(MS) of 2014 and in the said case, the writ
petition filed by the Society is bearing W.P.
No. 1001927 of 2014; writ petition filed by
the subsequent allottee Sri Rajesh Vyas is
bearing W.P. No. 1001520 (MS) of 2014
and in the said case, the writ petition filed
by the Society is bearing W.P. No.
1001924 of 2014; writ petition filed by the
subsequent allottee Sri Deepak Rana is
bearing W.P. No. 1001426 (MS) of 2014
and in the said case, the writ petition filed
by the Society is bearing W.P. No.
1003094 of 2014; writ petition filed by the
subsequent allottee Sri Satendra Kumar is
bearing W.P. No. 1001425 (MS) of 2014
and in the said case, the writ petition filed
by the Society is bearing W.P. No.
1002601 of 2014; writ petition filed by the
subsequent allottee Sri Dinesh Kumar
Mathur is bearing W.P. No. 1001551 (MS)
of 2014 and in the said case, the writ
petition filed by the Society is bearing W.P.
No. 1001911 of 2014; writ petition filed by
the subsequent allottee Sri Narendra Kumar
Pathak is bearing W.P. No. 1001455 (MS)
of 2014 and in the said case, the writ
petition filed by the Society is bearing W.P.
No. 1002600 of 2014; writ petition filed by
the subsequent allottee Sri Ritesh Singhal is
bearing W.P. No. 1001290 (MS) of 2014
and in the said case, the writ petition filed
by the Society is bearing W.P. No.
1003973 of 2014; writ petition filed by the
subsequent allottee Sri Prem Kumar
Sharma is bearing W.P. No. 1001529 (MS)
of 2014 and in the said case, the writ
petition filed by the Society is bearing W.P.
No. 1003972 of 2014 and lastly writ
petition filed by the subsequent allottee Sri
Sandeep Kumar is bearing W.P. No.
1001541 (MS) of 2014 and in the said case,
the writ petition filed by the Society is
bearing W.P. No. 1003974 of 2014.

10. In the petitions filed by the
subsequent allottees i.e. writ petitions No.
1001289, 1001290 and 1001368 of 2014,
the arguments were opened by Shri
Anupras Singh, learned counsel. This was
taken forward by Sri Rakesh Srivastava,
learned counsel appearing for subsequent
allotees in W.P. No. Civil Misc. Writ
Petitions No.1001455 (MS) of 2014,
1001518 (MS) of 2014, 1001520 (MS) of
2014, 1001549 (MS) of 2014 and 1001551
(MS) of 2014, Shri Hemant Kumar Mishra
learned counsel for petitioners in Civil
Misc. Writ Petitions No.1001425 (MS) of
2014 and 1001426 (MS) of 2014, Shri
Nirankar Singh in Civil Misc. Writ Petition
No.1001455 (MS) of 2014 and Shri Sanjay
Kumar Srivastava in Civil Misc. Writ
Petition No.1001541 (MS) of 2014.

11. The writ petition filed by the
Society as detailed above were all argued
by Sri Ganga Singh, learned counsel and
Sri Divyadeep Chaturvedi, learned counsel
2084 INDIAN LAW REPORTS ALLAHABAD SERIES
has made his submission through video
conferencing on behalf of the private
respondents (the original allottees) in most
of the Civil Misc. Writ Petitions bearing
W.P. No.1001289, 1001368, 1003093,
1003095, 1001425, 1002601, 1001426,
1003094, 1001549, 1001926, 1001529,
1003972, 1001518, 1001927, 1001455,
1002600, 1001552 and 1001911 of 2014
and Sri Anuj Dayal, learned counsel has
assisted Sri Divyadeep Chaturvedi, learned
counsel in Civil Misc. Writ Petition No.
1001290, 1001455, 1001518, 1001520,
1001541 and 1001551 of 2014 appearing
for the original allottees.

12. In order to appreciate the
contention raised by the respective parties,
it will be worthwhile to take a glance at the
facts giving rise to the instant petitions.

13. Jivan Bima Rashtriya Sahakari
Avas Samiti Ltd., Sector 6, Vasundhara
Ghaziabad is a Co-operative Society and is
governed by its by-law. It is also governed
by the provisions of the Act of 1965. The
Society was allotted land at GH-7, Sector6, Vasundhara Ghaziabad by the Uttar
Pradesh Avas Evam Vikas Parishad for
building cheap and affordable flats for its
members. The members of the Society
were required to contribute towards the
cost of the flats and to facilitate the same a
scheme of payment was formulated by the
Society.

14. While the Society had started
raising the construction of the flats but
since there were erratic payments from
some of the members of the Society and
there was change in the carpet area of the
respective flats, hence there was an issue
regarding the final pricing as escalated
costs and increase in the area of flats was to
be factored to arrive at an appropriate fixed
price of the respective type of flats.

15. In all there were 120 units with
the following break up:- (a) 48 units of
Type-A MIG flats measuring 880 square
feet and the initial price notified was Rs.6.5
lakh. Later, the area of the flats was
increased to 1127 square feet, thus, the cost
of Type-A flats was enhanced to Rs.8.55
lakh; (b) 44 units of Type-B HIG flats with
the original area of 1150 square feet and
was priced at Rs.8.5 lakh. Later, the area of
these Type-B flats was enhanced to 1545.7
square feet and the price was enhanced to
Rs.11.42 lakh; (c) 28 units of Type-C flats
which were super HIG having an initial
area of 1680 square feet and was priced at
Rs.11.50 lakh, but later, the area was
enhanced to 2006.21 square feet and the
price was also enhanced to Rs.14.58 lakh.

16. Since there was escalation of cost
on account of enhancement in the area and
even
otherwise
there
was
fractured
payments made by the members which also
led to increased cost of the flats as the
timelines were being overshot. In order to
arrive at an appropriate revised costs and in
absence of a consensus, the intervention of
the Housing Commissioner was sought and
the matter was referred to a Committee of
three members (hereinafter referred to as
the Dahiya Committee) who examined the
matter and then furnished its report
prescribing the enhanced and revised prices
for different category of the flats as
mentioned hereinabove.

17. The members of the Society were
thereafter
informed
by
the
Society
regarding the enhanced prices and the
increase in the area of the flats and the
members were requested to deposit the
short fall so that the flats could be
3 All. Pradeep Kumar Vs. The Co Operative Tribunal U.P. & Ors.
2085
completed within further time so as to
avoid any further costs over runs. Society
sent repeated demands to the members,
however, some of them did not adhere to
the timelines as a result the Society sent
final calls letters requiring the members to
deposit the outstanding sum, failing which,
appropriate action for cancellation of the
allotment would be initiated.

18. Despite the information having
been conveyed to the members yet many of
them did not adhere to the fiscal discipline
as a result the Society took a decision of
cancelling the allotment of such defaulting
members. In most of the cases, none of the
said
defaulting
members
took
any
immediate action nor they responded at the
time when the said cancellation notice and
refund of money was made rather they kept
silent at the said time

19. It is in the aforesaid backdrop that
the Society then made fresh allotment in
favour of the subsequent allottees who
deposited the entire consideration towards
the cost of the respective category of flats
as allotted to them by the Society and they
were issued the membership certificate,
allotment certificate and agreement was
also entered between the Society and the
fresh/subsequent allottees. In furtherance of
the
aforesaid
documentation,
subsequent/fresh
allottees
were
given
possession.

20. Subsequent allottees have since
then been in possession exercising their
proprietary rights over the said flats as
allotted to them and have got their names
duly mutated in the municipal records and
have been paying the municipal taxes,
electricity bill and other public utility bills.

21. After about two years from
cancellation,
few
of
the
defaulting
members whose membership had been
cancelled and their membership money was
refunded including the refund of the loan
amount, they raised dispute regarding the
cancellation of their allotment by filing
civil suits, later the suits were withdrawn
and the original allottees thereafter filed
petitions under Section 70 of the Act 1965.
As already noticed above, the awards were
passed in favour of the original allottees
which was assailed by the subsequent
allottees in appeal before the Co-operative
Tribunal and with the dismissal of the
appeal, the petitioners who are the
subsequent allottees preferred the instant
writ petitions.

22. In light of the aforesaid factual
matrix, learned counsel for the petitioners
have structured their arguments as under:-

(i) it is urged that in most of the
cases filed before the Arbitrator, there is a
challenge to the cancellation of the
allotment
by
the
original
allottees.
However, they did not challenge the
cancellation of their membership nor the
membership of the petitioners. It is
submitted that in order to have a valid
allotment it is sine qua non to have a valid
membership.
Once
the
allotment
is
cancelled but the membership subsists then
the person concerned can be granted a fresh
allotment but if the membership has been
cancelled then allotment cannot be made
nor it cannot be restored unless the
membership is restored. In most of the
cases, it has been submitted, that there is no
challenge
to
the
cancellation
of
membership rather it is only a challenge to
the cancellation of allotment and thus the
Arbitrator and the Tribunal were not
justified in restoring the allotment.

(ii) It is further submitted that
each case had to be dealt with by the
2086 INDIAN LAW REPORTS ALLAHABAD SERIES
Tribunal separately as they were different
facts but the Tribunal without looking into
the aforesaid aspect and treating all matters
at par has passed the impugned order which
is challenged in the various writ petitions,
clubbed together, indicates that there has
been lack of judicial application of mind
and incorrect findings have been recorded.

(iii) It is further urged that
primarily the ground upon which the
Arbitrator has passed the award and which
has been affirmed by the Co-operative
Tribunal is based on the premise that
sufficient opportunity was not given to the
original allottees. Moreover, when the
subsequent allotments were made, there
was no regular Committee of Management
incharge of the affairs of the Society rather
at the relevant time the Society was under
the control of the Administrator who did
not have the jurisdiction to enroll new
members and thus the allotment made in
favour of the subsequent allottees including
enrolling them as new members is wholly
without jurisdiction. It is submitted by the
learned counsel for the petitioners that this
view is incorrect for the reason that the
embargo upon the Administrator to enroll
new members is in context with the
election of the members of the Society. It
cannot be stretched to day today affairs;
inasmuch
as
even the
Administrator
appointed is required to take the decision
for the Society acting as its Committee of
Management.

It is also urged that in the instant
cases after the Administrator had enrolled
the new members and made the allotment,
this
enrollment
of
membership
and
allotment of flats was ratified by the duly
constituted
elected
Committee
of
Management of the Society. Thus any
defect, if any, in enrollment of members or
allotment of flats, the same stood cured
upon ratification by the duly elected
Committee of Management, hence it cannot
be said that the membership of the
subsequent allottees was bad.

(iv) It has also been pointed out
by the learned counsel for the petitioners
that in some cases despite the fact that the
original allottees had defaulted and fresh
allotment was made even then the fresh
allottees had also defaulted as a result the
allotment of the subsequent allottees was
also cancelled and only thereafter further
fresh allotment was made.

In few cases, the original allottees
were allotted flats of different category and
upon the request made by few of such
allottees, they migrated to a different
category of flat where again the said
allottees defaulted and thus with their
consent further fresh allotment was made.
In the aforesaid circumstances where the
original allottees
were
primarily
not
interested or were not alive to their rights
and later when the fresh allotments were
made, possession certificate were granted
to the fresh allotees who started residing,
then at a later stage the original allottees
woke up from their slumber and raised the
dispute and in such circumstances the
equity does not lie in favour of the private
respondents who are the defaulting original
allottees and this aspect has not been
considered by the Arbitrator or by the Cooperative Tribunal, hence the judgment of
the Co-operative Tribunal is bad in the eyes
of law.

(v) It is also urged that the
Arbitrator and the Co-operative Tribunal in
many of the cases noticed that the original
allottees were not adequately informed of
the demand as well as the cancellation,
which is incorrect. It is urged that the
Society had informed the said members by
series of correspondence and money was
refunded which was duly acknowledged by
the original allottees. Without examining
3 All. Pradeep Kumar Vs. The Co Operative Tribunal U.P. & Ors.
2087
this aspect as to whether they were actually
served or not, the Arbitrator as well as the
Tribunal has held that the order cancelling
the allotment has been passed behind the
back of the original allottees and has been
taken as one of the grounds for allowing
the claim of the original allottees and
dismissing the appeal of the petitioners and
this is against the material on record.

(vi) It is also submitted that the
Tribunal has erred in not examining the
facts of the case appropriately and a stereo
type order has been passed without
examining the respective contentions and
the material on record which has rendered
the impugned judgment of the Tribunal and
the award of the Arbitrator liable to be set
aside.

23.

Learned
counsel
for
the
petitioners have relied upon the decision of
the Apex Court in Maharashtra State
Mining Corporation Vs. Sunil (2006) 5
SCC page 96, A Jithendernath Vs. Jubilee
Hills Coop. House Building Society and
another
(2006)
10
SCC
page
96,
Myurdhwaj Cooperative Group Housing
Society Ltd. Vs. Presiding Officer, Delhi
Cooperative Tribunal and others (1998) 6
SCC page 39, Sri Parmeshwari Prasad
Gupta Vs. The Union of India (1973) 2
SCC 543, High Court of Judicature for
Rajasthan Vs. P. P. Singh and another
(2003) 4 SCC 239, National Institute of
Technology and another Vs. Panna Lal
Choudhury and another (2015) 11 SCC
669, New Okhla Industrial Development
Authority and another Vs. Arvind Sonkar
(2008) 11 SCC page 313, Hansa V Gandhi
Vs. Deep Shankar Roy and others (2013)
12 SCC page 776 and Geeta & others Vs.
Financial Commissioner Govt. of NCT
Delhi & others; 2023 INSC 316.

24. Shri Ganga Singh, learned counsel
for the Society has primarily submitted that
the Society was well within its rights as per
its by-laws to make demand of the costs of
the flats which was required to be deposited
by the members in a time frame. The bylaws of the Society empowers the Society
to take action against such defaulting
members and it is in furtherance thereof
that the Society had sent several reminders
to the defaulting members who did not
respond and thus looking at the larger good
for the majority of the members it cancelled
the allotments including the membership of
the defaulting members and the amount
towards the costs of the flats as well as the
membership amount was refunded to the
said defaulting members which is an action
taken by the Society in accordance with its
by-laws and cannot be termed as arbitrary.

25. Once the allotment and the
membership was cancelled it was no more
open for the original members to have
challenged
the
allotment
without
challenging
the
termination
of
their
membership
or
challenging
the
membership of the subsequent fresh
members/allottees. The Society had sent
demand letter to the members at their given
address which was duly served, hence it
cannot be said that the process adopted for
cancellation was in violation of any
principles of natural justice since repeated
reminder were sent and even though they
were acknowledged by the defaulting
members yet they did not make good the
demand, hence at this stage where fresh
allotment have been made and the fresh
allottees have been given the possession,
accordingly the claim of the original
allottees has incorrectly been allowed by
the Arbitrator and the appeal has been
wrongly
dismissed.
In
light
of
the
aforesaid, the learned counsel for the
2088 INDIAN LAW REPORTS ALLAHABAD SERIES
Society
submits
that
the
private
respondents being defaulters they have no
right to be given any allotment.

26. Shri Divyadeep Chaturvedi
alongwith Shri Abhishekh Dwivedi and
Shri Anuj Dayal learned counsel appearing
for the private respondents have primarily
urged that first and foremost the fresh
allotments were bad in the eyes of law for
the reason that they were made by the
Administrator who did not have the right,
authority or jurisdiction to enroll new
members. It is urged that any act which is
without jurisdiction then all subsequent acts
are also rendered void, accordingly once
the action of enrolling new members at the
behest of the Administrator is found to be
without jurisdiction, all subsequent acts
including making fresh allotments and
issuing possession certificates are rendered
void and no rights can accrue in favour of
the fresh subsequent allottees.

27. It is further urged by the learned
counsel for the private respondents that the
original allottees had already deposited the
original sum of money as cost of the flat
and if the said members could deposit the
said amount, they could have easily
deposited the enhanced sum also but no
adequate opportunity was given rather a
surreptitious method was adopted by the
Society in connivance with the fresh
allottees as a result the original allottees
have been outsted without due process and
as such the award passed by the Arbitrator
is absolutely just and so is the order passed
by the Tribunal dismissing the appeals of
the subsequent allottees.

28. It is further submitted that where
majority of the amount had already been
paid by the original allottees and the
dispute was only in respect of the enhanced
sum, accordingly the action of cancelling
membership and the allotment was not
commensurate with the default. The action
of the Society in this regard was arbitrary
and any action which is arbitrary cannot be
sustained and this has been noticed by the
Arbitrator as well as the Co-operative
Tribunal and in the aforesaid facts and
circumstances, the aforesaid orders do not
require any interference and the writ
petitions deserve to be dismissed.

29. It is further submitted that the
Tribunal has meticulously considered the
submissions and has also passed a balanced
orders so that the Society may not suffer
any financial loss as directions have been
issued by the Tribunal permitting the
Society to recover the outstanding sum
alongwith interest at the rate of 15% per
annum from the original allottees and in the
aforesaid
circumstances
the
private
respondents are ready to comply with the
aforesaid direction, hence the writ petitions
deserve to be dismissed.

30. Lastly, it has been pointed out that
the
recommendation
of
the
Dahiya
Committee was not binding on the
members and the cancellation of the
membership was a unilateral act of the
Society and many of the original allottees
did not take back their money voluntarily
and moreover the subsequent allottees have
no right as no transfer deed has been
executed in their favour and they are
merely licensee. Thus for all the aforesaid
reasons the writ petitions deserve to be
dismissed.

31.

Learned
counsel
for
the
respondents has relied upon the decisions
of the Apex Court in the case of Joint
Registrar of Cooperative Societies Kerala
Vs. T. A. Kuttappan and others (2000) 6
3 All. Pradeep Kumar Vs. The Co Operative Tribunal U.P. & Ors.
2089
SCC page 127, K Shantharaj and another
Vs. M. L. Nagaraj and others (1997) 6
SCC page 37, Modern Dental College and
Research Centre and others Vs. State of
Madhya Pradesh and others (2016) 7 SCC
page 353, the decision of Neelam Jain Vs.
Cooperative Tribunal, U.P. & others of
this Court passed in Civil Misc. Writ
Petition No.18732 of 2009 decided on
22.04.2011
and
Navita
Jain
Vs.
Cooperative Tribunal and others passed in
Writ-C No.54588 of 2008 decided on
14.05.2010.

32. Having heard learned counsel for
the respective parties at length, the issues
that crop up for consideration before this
Court are :-

(A) Whether the action of the
Society in terminating the Membership as
well as allotment of the original allottees is
bad and arbitrary for want of proper and
adequate opportunity of hearing and service
of notice;

(B) Whether the report of Dahiya
Committee was binding on the Members;

(C) Whether the administrator
could not enroll new Members for the
purposes of allotment of flats and what
would be the effect of the subsequent
ratification by the elected Committee of
Management in respect of the decisions
taken by the administrator; and

(D) Whether the impugned orders
are bad for violation of natural justice and
whether the orders have been passed
without considering the facts and material
on record and thus is perverse.

33. The Court shall deal with each
issues separately in seriatim.
(A) and (B)

34. Learned counsel for the privaterespondents had argued that the order
passed by the Society in terminating the
Membership as well as cancelling the
allotment is bad as no adequate opportunity
of hearing was granted to them. It was also
urged that the cancellation of the allotment
and termination of the Membership was a
unilateral act of the Society which is
arbitrary.

35. On the other hand, learned
counsel for the Society has categorically
taken a stand that several notices were
issued
to
the
private-respondents/the
original allottees and they were called upon
to make the payment of the outstanding
sum in respect of the flats allotted to them,
but the same was not done, as a result, the
Society was justified in cancelling the
allotment as well as the Membership.

36. In this regard, it was the specific
case of the Society that in the Annual
General Meeting of the Society held on
04.08.2002, Resolution No.5 was passed
and it was resolved by the Members present
that the costs of the flats were to be revised.
Since, there were various views including
opposition from certain quarters of the
Members, hence, the grievance was placed
before
the
Assistant
Housing
Commissioner
on
06.02.2004,
who
appointed a Committee which has been
mentioned in the instant order as B.S.
Dahiya Committee. The report of the
Dahiya Committee was placed before the
Administrative Committee in the meeting
on 03.04.2004 wherein it was decided that
demand letter be sent to all the Members
for depositing the costs of the flats as
determined by the Dahiya Committee.

37. It is in furtherance thereof that the
Society issued letters dated 05.04.2004 to
2090 INDIAN LAW REPORTS ALLAHABAD SERIES
all the Members intimating them that the
Dahiya Committee report was available in
the office of the Society where it could be
read and perused by the Members. Demand
notices were also issued requiring the
Members to deposit the shortfall as per the
schedule mentioned in the said notice. The
said demand notices were sent at repeated
intervals to the original allottees who did
not choose to respond as they remained
inert inasmuch as neither any reply was
given nor the outstanding amount was paid.

38. It is in the aforesaid context a
fresh demand notice was issued on
24.06.2004
directing
the
privaterespondents to deposit the balance sum and
it was also made clear in the said notice
that in case of non-payment, the allotment
would be cancelled, but there was no
response to this notice as well. Despite the
same, a fresh notice was again issued on
19.07.2004 by the Society which was
followed by reminder dated 06.08.2004 and
once the notices were served on the
defaulting Members without any response
and compliance from their end, the said
situation was brought and placed before the
Administrative Committee of the Society,
who reviewed all the cases of default. Yet
taking a lenient view, it was decided by the
Committee that a last opportunity be given
to the defaulting Members to pay the
outstanding sum by 30.08.2004, however,
even this letter was not responded nor the
amount was paid, hence, left with no
option, the Society then took a decision to
cancel the allotment. By the Resolution
dated 01.09.2004, the cancellation of the
allotment was done by the Committee. This
Resolution of the Society, which was at the
relevant time under an Administrator was
placed before the Assistant Housing
Commissioner, who approved the same on
14.09.2004.

39. Once again the Society informed
the
private-respondents
regarding
cancellation of allotment and it was further
informed that the private-respondents may
submit their no objection certificate from
the respective banks, from where the said
Members had taken the housing loans.
However, no such response was given and
accordingly considering the circumstances
the Society issued cheques to the defaulting
Members refunding their Membership fee
and the sum which was paid by such
defaulting members towards the part cost
of the flat was returned to the banks from
whom the said Members had taken their
respective loans. Most of the said Members
had encashed the said cheques. This fact of
sending repeated reminders and the demand
notices to the defaulting Members could
not be adequately disputed by the privaterespondents. No cogent reason was also
given as to why the private-respondents did
not make good the outstanding payment
regarding the escalation of the costs of the
flats.

40. A feeble submission has been
made by the learned counsel for the
private-respondents to indicate that the
report of Dahiya Committee was not
binding on the Members. It was also urged
that since the private-respondents were
disputing the action of the Society in
enhancing the cost of flats, hence, the
private-respondents did not accede to pay
the aforesaid sum.

41. It has further been pointed out that
even the report of the Dahiya Committee
did not have the unanimous approval of the
three
Members
constituting
the
said
Committee rather one of the Members of
the said Committee namely Mr. Ramesh
Gupta did not sign the same, hence, the
same could not have been made binding.
3 All. Pradeep Kumar Vs. The Co Operative Tribunal U.P. & Ors.
2091

42. From the pleadings and the
material on record a fact that emerges and
the same is undisputed is the fact that out of
120 Members of the Society, 100 Members
had acceded to the enhancement of costs of
the flats and they had even deposited the
enhanced amount. Merely because one of
the Member of Dahiya Committee did not
sign the report in itself does not lead to any
inference that the said report could not be
made binding rather the record would
indicate that the said decision of the Dahiya
Committee was accepted by the Committee
of Administrator which was further placed
before
the
Assistant
Housing
Commissioner, who also approved the
same and it was placed before the
Members, who approved it and that is the
reason why out of 120 Members, 100
Members paid the escalated amount.

43. Be that as it may, the fact that
there was a dissent amongst the Members
regarding the escalation in the costs of the
flats and this issue was placed before the
Committee of Administrators who in turn
placed the matter before the Assistant
Housing Commissioner who constituted a
three
Members
Committee
which
submitted its report and the said report was
approved
by
the
Assistant
Housing
Commissioner. Another significant factor
which is evident from the record is the fact
that the carpet area of the various types of
flat i.e. A, B, C, D had enhanced from the
original carpet area and thus there was
bound to be escalation in the price of the
flats. With passage of the time there was
cost over runs, hence, the experts had given
their recommendations for enhancement
which had been accepted and approved by
the Assistant Housing Commissioner. The
Society had informed all the Members
regarding the aforesaid enhancement and
there is no dispute to the fact that out of
120, 100 members agreed and did pay the
enhanced sum. Thus, it cannot be said that
the said report was not binding on the
Members. The Society functions on the
democratic principles and where the
overwhelming majority of the Members
accepted the decision and acted upon it by
making the payments of the enhanced sum,
in such circumstances, it cannot be said that
the report of the Dahiya Committee could
not be made binding on all the Members.

44.