Misra, J. - (1.) The short question raised in this appeal is, "whether in the allotment of flats to its members by the Co-operative Housing Society (hereinafter referred to as 'the Society') the criteria is seniority irrespective of default in the payment of dues or whether it is payment-cum-seniority - The appellant is a registered Housing Co-operative Society, registered in the Office of Registrar, Co-operative Societies, Delhi, under the Delhi Cooperative Societies Act, 1972 (hereinafter referred to as "the Act") and the Delhi Co-operative Societies Ruels 1973 (hereinafter referred to as "the Rules"). It was constituted for the purpose of allotment of flats to its members. At the relevant time 460 members were in roll. This Society applied for allotment of land to the Delhi Development Authority (hereinafter referred to as "DDA") for the purpose of construction of flats for its members. This Society was allotted only 5 acres of land in Patparganj which was not sufficient for the construction of flats for the aforesaid members. However, later on, in view of relaxation to the ceiling limit DDA decided to make additional allotment as per actual requirement, that is to say, to the extent of 7.666 acres of land instead of 5 acres. The society was also directed to deposit a sum of Rs. 11,87,190.80p. towards the cost of additional land. In 1988, the Society raised demand for the construction of first phase of flats on the said 5 acres and also sent reminder notice to all its members through registered post including the main contesting Respondent No. 3, Mrs. Veena Kumar vide notice dated 26th April, 1989 (the receipt of the notice was denied by respondent No. 3). As per the said notice the cost of construction of flat of each of its member was said to be Rs. 2,75,213/- approximately. The mode of payment as per the first notice was, to pay initially Rs. 2,21,705/- by each of such allottee but since only Rs. 85,100/- was paid hence through the aforesaid notice it was directed to pay the balance amount of Rs. 1,36,705/- within thirty days. Further it resolved those defaulting shall be expelled from the Society. A general body meeting was convened by the Society on 6th January, 1990. In this meeting the general body took a softer view, in spite of the said notice dated 6th April, 1989. It resolved, all its members who were allotted HIG(L) and HIG(S) category and had paid Rs. Two lakhs and Rs. 1,75,000/- respectively their allotments have been provisionally confirmed and all those members who have paid the minimum credit balance of Rs. 1,32,221.50p. were accommodated at Plot No. 60, Patparganj, Delhi subject to their qualifying requirement for being a member in the Society and subject to their making payment of the balance amount, but those who failed to pay even Rs. 1,32,221.50p. would only be accommodated on the flats to be constructed on the additional land which were to come in phase II construction. Phase I construction is on the said 5 acres of land.
(2.) Respondent No. 3 filed a claim petition under Section 60 of the Act on the ground that the decision taken by the General Body on the 6th January, 1990 was illegal, mala fide, discriminatory and without jurisdiction. The matter was referred to the Arbitrator under Section 61 of the Act. The Arbitrator gave the award in favour of the appellant-Society on the basis of a decision in Civil Writ Petition No. 955 of 1989 titled, A.V. Ashokan v. Registrar, Co-operative Societies, decided on 30th April, 1992. On appeal filed by respondent No. 3 under Section 76 of the Act the Appellate Authority (respondent No. 1) set aside the said award by its order dated 29-9-92. It held that in a matter of allotment of flats in a Cooperative Society, seniority has to be the prime criteria notwithstanding the default made by a particular member. It also recorded so far as lapse of payment, it could be dealt with under separate provisions by charging interest including penal interest or by taking steps for expulsion of concerned member.
(3.) After coming to know of this order, the appellant filed review, which was dismissed. Thereafter the appellant filed a writ petition which was also dismissed by the High Court. The main contention raised now by the appellant which was also raised before the High Court, viz., the respondent No. 1 wrongly held principle of seniority as the only criteria in the matter of allotment. It is urged, in view of the decision taken by the High Court in the case of, A.V. Ashokan (supra) and in Civil Writ Petition No. 1484 of 1991 titled, S.C. Verma v. Lawyers Co-operative Group Housing Society Limited, dated 22-8-91, the decision of the Tribunal is liable to be set aside. These decisions hold that the allotment of flats should be on the principle of payment-cum-seniority. The submission of the appellant is, High Court did not appreciate these decisions, hence committed grave illegality in dismissing the writ petition. The case of A.V. Ashokan (supra) pertains to the allotment of flats by Saraswati Kunj Co-operative Society Ltd. with reference to category 'C' flats. The number of flats were 60 while the applicants were 88. As all the applicants for category 'C' flats at Patparganj could not be accommodated hence they were shifted to another land where further flats were being constructed. The Court recorded: "While some members contended that the list should be prepared according to the date of enrolment as a member, other submitted that the list should be prepared according to the date of payment of the amounts due. We may also note that the General Body had, in a meeting in March, 1987, decided that a list should be prepared of those members who had paid Rs. 1,50,000/- by 15th December, 1986 and thereafter the list should be prepared according to the date of payment....... It is not possible to ignore seniority of members while, at the, same time, we cannot ignore the fact that some members may have paid the amounts claimed from them while more senior members may not have met the payment schedule and they cannot take undue advantage of other members who have paid full amount.... Therefore, if, after considerable difficulty, payments have been made by the members it will be unfair to disregard the dates of payment completely. 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....." ;