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1991 DIGILAW 47 (DEL)

DAYA WANTI DASUJA v. REGISTRAR, COOPERATIVE SOCIETIES

1991-01-24

B.N.KIRPAL, SANTOSH DUGGAL

body1991
B. N. Kirpal, J. ( 1 ) RULE D. B. ( 2 ) IN this petition the prayer is that the letter terminating the membership of the membership of the petitioner by respondent No. 2 and the rejectionof the representation by respondent No. 2 should be quashed. ( 3 ) THE husband of the petitioner, namely, Shri Shiv Dayal Dasuja, isstated to have been a member of respdt. No. 2 which is a house building society. The husband of the petitioner died in 1965. The petitioner was the nomineewith the respondent Society and after her husband s death, had been paying torespondent No. 2 various sums of money, totalling Rs. 7. 283. 00. In proof thereof, the petitioner has annexed with the petition a receipt of July 1977 for anamount of Rs. 3. 700. 00 and thereafter a demand was received vide notice dated 4/08/1985 and a sum of Rs. 3,500. 00 was paid by the petitioner in thatmonth itself, ( 4 ) SUDDENLY, according to the petitioner, a cheque of Rs. 7. 283. 00 wasreceived by her in August, 1985. The petitioner thereafter went to the office ofrespondent No. 2 where she received a letter dated 20/08/1985 in whichit is stated that the petitioner had not paid a sum of Rs. 17. 00, being the balanceof the share value, and therefore, her primary membership was terminated. The case of the petitioner is that no demand had ever been raised and, in fact,vide cheque dated 8/03/1983 shewasgivenarefundofrs. 20. 00andeven if it is to be assumed that there was an amount of Rs. 17. 00 outstanding,then the same should have been adjusted against the sum of Rs. 20. 00. According to the petitioner, the cheques received by her for Rs, 7,283. 00 and Rs. 20. 00were never encashed by her. The petitioner is stated to have made a representation to the Registrar of Co-operative Societies, respondent No. 1 but got noredress. After approaching the Delhi High Court Legal Aid and Advice Board,the present petition has been filed. ( 5 ) IN the reply affidavit filed on behalf of respondent No. 2, it is contended that the dispute had been referred under Section 60 of the Delhi Cooperative Societies Act, 1972-and the claim was dismissed indefault as no oneappeared. No reply has been filed in detail controverting the various otherallegations contained in the writ petition. ( 5 ) IN the reply affidavit filed on behalf of respondent No. 2, it is contended that the dispute had been referred under Section 60 of the Delhi Cooperative Societies Act, 1972-and the claim was dismissed indefault as no oneappeared. No reply has been filed in detail controverting the various otherallegations contained in the writ petition. ( 6 ) IN the rejoinder it has been contended by the petitioner that shehad approached one Mr. S. R. Ahuja, Advocate to represent her case butthereafter she did not hear from him. No application was filed by her or underher signatures. ( 7 ) WE find that respondent No. 2 has placed on record a photo copyof the application dated 19/09/1985 stated to have been filed onbehalf of the petitioner. However, the said application does not bear hersignatures. In fact, the said application does not bear the signatures of theadvocate, Shri S. R. Ahuja also. Respondent No. "i has also filed an orderdated 19/02/1986 whereby the claim of the petitioner was dismissedby. the Joint Registrar (Arbitration) on account of her non-appearance. ( 8 ) UNDER the circumstances we are inclined to accept the version ofthe petitioner that she was not aware of any petition having been filed forarbitration or we see no reason as to why the petitioner would not have pursued her case if she knew that it had been initiated by her lawyer. In any casethe claim, if any, having been dismissed in default, cannot be a reason for notexercising the jurisdiction by us under Article 226 of the Constitution especiallyin view of the fact that the interference in the present case is called for. ( 9 ) AS already noted, the petitioner was admittedly a member ofrespondent No. 2 Society after her husband s death. The only season forterminating her membership is that she did not pay Rs. 17. 00. It is alleged thatthis sum of Rs. 17. 00 was called for by an insertion in the newspaper. According to the petitioner, she is an illiterate lady and she was not aware that shehad to pay Rs. 17. 00. In our opinion for the alleged non-payment of the paltrysum of Rs 17. 00the membership of the petitioner should not have been terminated especially when she has paid all the other amounts which were claimedby the Society amounting to Rs. 7,283. 00. 17. 00. In our opinion for the alleged non-payment of the paltrysum of Rs 17. 00the membership of the petitioner should not have been terminated especially when she has paid all the other amounts which were claimedby the Society amounting to Rs. 7,283. 00. That apart, as already noticed earlier,in 1983 a refund of Rs. 20. 00was sent to the petitioner. The claim of Rs. 17. 00is stated to have been raised in the year 1980. If the amount of Rs. 20. 00 wasdue to the petitioner, there is no reason that the same should not have beenadjusted by the Society itself against its claim of Rs. 17. 00. In our opinion, onthe facts and circumstances of this case the action of the respondents in terminating the membership of the Society was wholly unjustified and uncalledfor. ( 10 ) FOR the aforesaid reasons, we allow this writ petition and issue awrit of mandamus. quashing the letter dated 20/08/1985 and anyresolution which might have been passed by the respondent Society expellingthe petitioner, and further issue a writ of certiorari quashing the order dated 19/02/1986 passed by the Joint Registrar (Arbitration ). We furtherissue a writ of mandamus to respondent No. 2 to restore the membership of thepetitioner immediately. ( 11 ) THE petitioner will be entitled to allotment and possession of plotof land to her on the same terms and conditions on which plots have beenallotted to similarly placed other members of the respondent Society and theallotment should be made to the petitioner on the basis of her original membership and seniority. Allotment should be made by respondent No. 2 Society infavour of the petitioner within one month from today. A copy of this judgment be given dasti to the Counsel for the petitioner.