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[ In the High Court of Delhi, Civil Writ Appeal No. 3134 of 1999, Civil Miscellaneous Appeal No. 6656 of 1999. ] 10/09/2001
Advocate(s) : J.N. Gupta, R.G. Srivastava, S.K. Luthra.
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  "2001 (94) DLT 456"  ==   "2001 (7) AD(Del) 972"  ==   "2001 (7) ILR(DLH) 207"  

    Constitution of India 1950 - Article 226 -Delhi Co-operative Societies Act 1972 - Section 61 -Writ Petition dismissed     MANMOHAN SARIN J.(1) RULE. WITH the consent of the parties the writ petition is taken up for disposal. The petitionors have filed the present writ petition assailing the order dated 6/4/1999 passed by Delhi Cooperative Tribunal Delhi dismissing the appeal No. 24 of 1999 titled smt. Bhagwati Devi and others vs. Geva Sampada cooperative Group Housing Society Limited and others. (2) THE appeal had been preferred by the petitioners against the arbitrators award dated 11/12/1998 made under Section 61 of the Delhi cooperative Societies Act by which the order of the Administration dated 22/3/1999 holding the allolment of flat No. M/12/c to the petitioners late husband as illegal and directing its allotment to respondent No. 5 Shri Kewal Krishan Arora. (3) BEFORE Nothing with the submissions made by learned counsel for the petitioners mr. R. G. Srivastva it would be appropriate to briefly recapitulate the factual matrix of the case to the extent relevant for disposal of the writ petition. (I) The husband of petitioner No. 1 and father of petitioners 2 and 3 late Shri s. B. Bahuguna was a member of respondent No. 3 M/s geva Samta Cooperative Group Housing Society Ltd. The case of the petitioner is that in October 1989 Mr. S. B. Bahuguna who also happened to be treasurer of the Society was allotted Flat No. M-12-C while another flat No. M-12-B was allotted to kewal Krishan respondent No. 5. It is the petitioners case that the petitioner had represented to the said Society for change of the flat and for allotment of flat No. M-12-B which happened to be on the first floor on health grounds. The Managing committee of the Society considering the yeoman services rendered by the petitioners husband acceded to the request and Flat No. M 12-B. which was originally allotted to Kewal Krishan was allotted to the petitioners and possession was handed over in October 1989 itself. It is the petitioners case that petitioners family continued to reside and live in the said flat. (II) Respondent No. 5 is also stated to have resigned in the year 1986 from the membership of the Society. The amounts paid by way of membership and other dues are stated to have been refunded to respondent No. 5 on 15/5/1986. Respondent No. 5 having resigned from the membership and having received the refund of the amounts paid by him could not have laid claim to flat no. M-12-B which had been allotted to the petitioners husband. (4) I have heard learned counsel for the petitioner Mr. R. G. Srivastva in support of the writ petition. Learned counsel for the petitioner has assailed the order of the Administrator as well as the arbitrators award. Learned counsel submits that the arbitrators award is not based on any evidence. The award virtually relies on the report of the Administrator which could not be treated as evidence. Learned counsel further submits that the award is also vitiated by denial of opportunity to the petitioner to lead evidence in support of his submission. Further an allegation is made that respondent No. 5 who was working in Delhi Administration raked up the entire issue of flat No. M-12-B allotted to the petitioner only after an Administrator was appointed on the managing Committed being superseded. It is stated that respondent No. 5 exercised his influence with the Administrator who were colleagues working in the Department. Resultantly the impugned direction and order by the Administrator cancelling the allotment of flat No. M 12-B to the petitioner was passed. The arbitrators award simply relied on the Administrators report. In this connection it is contended that respondent No. 5 did not raise any objection for five years from 1989 to 1993 for the allotment of flat No. M-12 B to the petitioner. Learned counsel laid considerable emphasis on the fact that once respondent No. 5 had resigned before forfeiting all his rights he cannot assail the allotment of flat No. M-12-B to the petitioners. (5) MR. LUTHRA counsel for respondent No. 5 pointed out at the outset that there was no allotment of flat No. M 12-B in favour of the petitioners late husband. Admittedly flat No. M-12-C had been allotted to the petitioner who illegally and on account of his influence with the Managing committee being a treasurer got the possession of flat No. M-12-B. Mr. Luthra submitted that there was no formal better of allotment in respect of flat No. M-12-B ever issued to the petitioner. As regards respondent No. 5 being resigned from the membership of the society Mr. Luthra admitted that respondent No. 5 had no doubt resigned but was re admitted in March 1987. It is respondent No. 5 case that he made payments as were required from him. In fact the there is no controversy in this regard as the petitioners themselves have made averments with regard to re-induction of respondent No. 5 as a member oven in the statement of claim before the Arbitrator in the following terms:the sight of construction work inspired him to re-apply for membeship of the society and he was subsequently inducted as a member even though he had not paid all the dues to the society. It would appear that the petitioner was only questioning and raising the issue of respondent no. 5 not being entitled to allotment due to default in payment of dues. On this aspect mr. Luthra submits that respondent No. 5 had paid the amounts as demanded and in fact there was no rule debarring reinduction or allotment if the entire money had not been paid. It is his contention that even the petitioner had not made the full payment as of that date. In any case he urged that as re admission was in the year 1987 the allotment and handing over of possession bring in 1989 the resignation from Membership and re admission were of no consequence. The respondent no. 5 on the relevant date was a duly constituted member. (6) RESPONDENT No. 5 claims that despite repeated requests possession or flat No. M 12-B was not handed over to the respondent. The petitioner was even made to give a letter of inducement that the needful will be done but respondent No. 5 was neither handed over possession of flat No. M-12-B or M 12-C. (7) I have also heard Mr. J. N. Gupta learned counsel for the Society Mr. Gupta has submitted that unfortunately there is no record available with regard to the formal allotment of flat No. M-12 B to husband of the petitioner late S. S. Bahuguna. There is no resolution of society having been passed making this allotment. Mr. Gupta states that as soon as the possession of the flat is handed over by the petitioner the same can be handed over to respondent No. 5 subject to payment of dues Mr. S. K. Luthra of course states that he has no objection to the payment of of legitimate dues with interest. (8) I have given my thoughtful consideration to the submissions of the petitioner. In this case based on the pleadings of the parties before the Arbitrator as well as the communications before the Administrator the critical facts are not in dispute between the parties. To recapitulate it is common ground that initially flat no M-12 B was allotted to respondent No. 5. The petitioners claim that flat No. M-12-B was subsequently allotted to the petitioners late husband considering his yeoman services to the Society and his request on health grounds. However as noticed by the administrator also there is no record to support the above. In these circumstances the conclusion and inference reached by the Administrator and the Arbitrator that flat no. M-12-B was illegally occupied and taken possession of by the petitioners late husband who happed to be an influential member of the managing committee being a treasurer cannot be faulted with. I also do not find merit in this submission of learned counsel for the petitioner that the Arbitrator could not have relied on the reports of the Administrator. In a case where the basic allotment letters or resolutions in favour of the petitioner are not available inference is to be drawn by the arbitrator from the record and pleadings of the parties on admitted facts which cannot be faulted with I do not find any infirmity in the arbitrators placing reliance thereon.(9) AS regards the denial of opportunity to file evidence learned counsel for the petitioners had no doubt in the proceedings sheets before the Arbirator made a note of the arbitrator of his request of filing of evidence by way of affidavits not being entertained. He is unable to point out on what aspect was evidence required to be led by him in view of the admitted positions on record before the Administrator as well as the Arbitrator. Even during the course or arguments in the writ petition I had given liberty to the petitioners to point out any piece of evidence which the petitioners wanted to be considered for supporting any of the averments made. Learned counsel submitted that he would have adduced some evidence with regard to the allegation made by the petitioner of the Administrator being in collusion with respondent No. 5 which led to the cancellation of the petitioners allotment. In my view this in any case could not negate the non-allotment of flat No. M-12-B in favour of the petitioner. (10) IN view of the foregoing I am of the view that petitioners have failed to make out any case of error of jurisdiction or of breach of principles of natural justice vitiating the findings reached by the Administrator Arbitrator and upheld by the Appellate Court. Writ petition is accordingly dismissed.