CONTEMTP PETITION (C) NOS.1505-1506 OF 2017 IN SLP (C) NOS.10375-10376 OF 2017 SANT LAL GUPTA & ORS. VS. UMESH KUMAR JAIN & ORS.                                                                                     

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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CONTEMPT PETITION (CIVIL) NOS.1505-1506/2017  

IN  

SPECIAL LEAVE PETITION (CIVIL) NOS.10375-10376 OF 2017

SANT LAL GUPTA & ORS. …Petitioner(s)

VERSUS

UMESH KUMAR JAIN & ORS.              …Respondent(s)/ Alleged Contemnor(s)

WITH

MA NO.1260/2018 IN C.A. NO.9439 OF 2003

MA NO.1261/2018 IN C.A. NO.9439 OF 2003

MA NO.1262/2018 IN C.A. NO.9439 OF 2003

MA NO.1263/2018 IN C.A. NO.9439 OF 2003

J U D G M E N T

Uday Umesh Lalit, J.

1. This Contempt Petition  inter alia seeks enforcement of the order

dated 31.03.2017 passed by this Court in SLP(C)…..CC No.6319 of 2017

and prays for direction that the contempt petitioners be put in possession of

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12  apartments  indicated  in  the  Contempt  Petition.   The  order  dated

31.03.2017 passed by this Court was to the following effect:

“Taken on board.

Application for exemption from filing certified as well as plain copy of the impugned order and permission to file SLP(s)  without  certified  copy  as  well  as  plain  copy  of impugned order are allowed.

We  do  not  see  any  reason  to  interfere  with  the impugned order(s) of the High Court.  The special leave petitions are dismissed.  

Learned Counsel for the petitioners requests that the petitioners be given some reasonable time to vacate the disputed premises in question.

Having regard to  the facts  and circumstances  and the history of the case,  we deem it  appropriate to grant three months’ time to the petitioners to vacate the premises in  question  subject  to  the  condition  that  the  petitioners shall file an undertaking before this Court that they would so vacate.  Such an undertaking be filed by the petitioners within a period of two weeks from today.”  

2. The facts leading to the filing of this Contempt Petition, in brief,

are as under:

a) The  Modern  Cooperative  Group  Housing  Society  Limited

having an  approved strength  of  211 members  passed a  Resolution

dated 27.12.1987 in a General Body Meeting expelling 27 members

including the present contempt petitioners.  It appears that there were

certain  resignations  after  such  expulsion  and  15  new  members

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including the alleged contemnors  herein were  inducted against  the

vacancies.

b) The  expulsion  of  those  27  members  was  subject  matter  of

challenge and finally by judgment and order dated 18.10.2010 passed

by this Court in Civil  Appeal No.9439 of 2003, the claim of those

who were expelled, was accepted and following direction was passed: “31.  Be that as it may, we have been informed by learned counsel for the parties that the Society has been taken over by the Administrator and a large number of flats remained un-allotted.   The  appellants  have  filed  the  information sought by them under the Right to Information Act, 2005 on 23.04.2008 which makes it clear that 15 flats bearing Nos.14, 23, 217, 324, 325, 327, 418, 421, 426, 513, 516, 619, 623 and 726 category – ‘B’ and 737 category – ‘A’ remained unallotted.  In order to meet the ends of justice it is required that appellants be adjusted against the said un- allotted flats.  However, the Society shall put a demand, if any, and the appellants are directed to make the payment with interest in accordance with law.”

c) The newly inducted members including the alleged contemnors

then approached this Court by way of IA No.6-7 of 2011 which were

disposed of by this Court on 03.03.2011, recording as under:  “The  applicants  are  permitted  to  move  the Administrator/Registrar,  Cooperative  Societies,  Delhi  to vindicate their grievance and it is for them to substantiate and  establish  their  rights.   It  is  made  clear  that  the applications shall be disposed of after hearing the parties as well as Society.”

d) The  second  round  of  litigation  then  began  with  the  newly

inducted  members  approaching  Registrar  Cooperative  Societies

submitting  inter  alia that  relevant  facts  were  concealed  from this

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Court and it was not disclosed to this Court that pursuant to the draw

of lots held on 20.10.2002, the newly enrolled members were put in

physical occupation of said apartments.  The matter was considered

by  the  Registrar  Cooperative  Societies  and  following  order  was

passed on 24.02.2012: “08.  Meetings with Administrator were held on a number of occasions to discuss the issue of allotment in the light of  the  Apex  Court  orders  dated  18.10.2010  and  dated 04.03.2011 and as a consequence of those meetings, the Administrator  in  continuation  of  his  letter  dated 31.10.2011 sent another letter dated 11.01.2012 informing that in view of the direction of this office which were sent on  01.04.2011  for  complying  the  orders  of  Hon’ble Supreme Court dated 18.10.2010, the demand letters were sent to the 14 members who were ordered to be admitted by the  RCS vide  his  order  dated  26.08.1997.   Thirteen persons have deposited the amount demanded from them, however,  one  person,  namely  Shri  Naurang  Ram (Membership  No.160)  has  not  deposited  the  demanded amount.  The Administrator was also called in this office, who had apprised the undersigned about the possession of society flats and the matter of occupancy of flat and other related  issues  were  discussed  thereafter  in  the  light  of subsequent  order  of  Hon’ble  Supreme  Court  on 04.03.2011.   In  consequence  thereof,  the  Administrator met the persons occupying the 15 flats which were allotted to  them  in  an  unauthorized  draw,  on  01.10.2011  and 10.10.2011.   On  20.10.2011  those  members  have  also submitted  documents  in  their  possession  to  the Administrator  in  support  of  their  claims  of  being  the bonafide  members  of  the  society.   All  these  documents have been forwarded by the Administrator to this office apart from forwarding the details of cheques deposited, by the 13 members.   These documents were examined and thereafter,  as  per  the  direction  of  the  Hon’ble  Supreme Court, 15 unauthorized occupants of the flats in the society were called for  personal  hearing by the  undersigned on 14.02.2012.  The Administrator of the society Shri D.K. Mishra, IAS was also called to represent the society.  All 15  persons  or  their  representatives  as  also  the Administrator  were  present  during  the  hearing  on 14.02.2012.   The  applicants  re-iterated  that  they  were allotted flats and living in the society since 2002.  There

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are 06 persons who are still occupying flats and 09 have sold those after getting possession on 20.10.2002.

09.  On the basis of the records available in this office, orders passed by the various courts as well as the Apex Court, report of the Administrator and submissions made by the appellants and the unauthorized occupants of the flats in I.A.No.6-7 of 2011, I am of the considered opinion that the self draw held on 20.10.2002 was illegal and this was never  organized or  regularized  by this  office.   The Hon’ble  Supreme  Court  of  India  vide  its  order  dated 18.10.2010 upheld the order dated 26.08.1997 of the RCS. The operative part of the order dated, 26.08.1987 of the then RCS in this regard is given below:-

“in the circumstances the proposed expulsions are rejected against 14 persons.  The society is directed to readmit the 14 persons whose names are given below:

1. Sh. Mithlesh Jain 2.  Sh. Sant Lal Gupta 2. Sh. Naurang Ram 4.  Sh. Virender Kumar Jain 5. Sh. Raghbir Singh 6.  Sh. Om Prakash Gupta 7.  Sh. Rakesh Grover 8.  Sh. Vijay Grover 9.  Sh. Narender Kumar 10.  Sh. Ram Saran 11.  Sh. Vinod Kumar 12.  Sh. Shyam Lal 13. Sh. Kashmiri Lal 14.  Sh. Shiv Prasad

10. In  view  of  the  aforesaid  order  of  the  Hon’ble Supreme Court, I direct the Society to readmit the above 14 persons as members of the Society.  They should be issued share certificate by the Administrator of the society immediately.   With respect to the flats being occupied by the applicants, who had filed I.A. Nos.6-7 of 2011 in Civil Appeal No.5439 of 2003, these persons were admitted as members by the Society in utter violation of the provisions of law since there was no clear vacancies at that moment. Accordingly,  their  admission  as  members  and consequently  allotment  of  flats  to  them,  cannot  be recognized and same is therefore set aside.”

e) The aforesaid  order   directing  those  14  persons to be re-

admitted, was confirmed by the Financial Commissioner in Revision

Petition Nos.119 of 2012 and 151 of 2012.  The matter reached the

High Court by way of Writ Petition (Civil) No.4202 of 2014 at the

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instance of the newly inducted members.  The challenge was rejected

and the following order was passed by the High Court on 31.01.2017.

“16.  We, therefore, dispose of the writ petitions with the direction  to  the  RCS  to  draw  out  a  seniority  list  of members after consultation with the Administrator.   The members lower in the seniority will have to surrender and vacate the flats in their occupation in favour of the Rakesh Grover Group (14 members).  We are given to understand that  the  members  lowest  in  the  seniority  list  are  in occupation  of  flats  mentioned  and  recorded  by  the Supreme Court in paragraph 31 of their order dated 18th October, 2010.  This is apparently correct and this is the reason  why  they  have  filed  W.P.  (C)No.8553  of  2014. They would have to vacate and handover the possession of the flats to Rakesh Grover Group (14 Members).

17. The  RCS  will  complete  the  aforesaid  exercise within a period of two months from the date a copy of this order is received.  With the aforesaid directions, the writ petitions are disposed of.  All pending applications are also disposed of.  No costs.”

(f) The order passed by the High Court was put in challenge before

this Court and the special leave petitions were dismissed by this Court

on  31.03.2017.   In  terms  of  the  liberty  granted,  the  special  leave

petitioners filed appropriate undertakings to vacate the apartments in

their occupation.  The undertakings were filed on 13.04.2017 and the

relevant averments in that behalf are to be found in para no.15 of the

present contempt petition as under:-

“15.  That as many as 12 persons have filed undertakings on 13.04.2017 vide Diary No.31470 before this Hon’ble Court.   The  names of  the  persons/contemnors,  filed the undertaking with flat number are given herein below:-

(i) Dinesh Kumar – Flat No.327

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(ii) Harbinder Kaur Sarna – Flat No.623 (iii) Ritu Sethi – Flat No.325 (iv) S. Khurana (Sneh Lata Khurana) – Flat No.513 (v) Ritu Singh – Flat No.619 (vi) Anita Goel – Flat No.516 (vii) Trishala Jain alias S.B. Sharma – Flat No.426 (viii) Umesh Kr. Jain – Flat No.726 (ix) Arun Kumar Jain – Flat No.421 (x) Devender Nath Sharma – Flat No.217 (xi) Vineet Mittal – Flat No.14 (xii) Sanjay Kumar – Flat No.418”

3. Alleging that  despite  such undertakings,  the  alleged contemnors

had  failed  in  vacating  the  apartments  in  question  and  in  handing  over

possession, the present contempt petition was filed.  The notice was issued

on  04.08.2017  and  by  further  order  dated  25.01.2018  status  quo  was

directed to be maintained.    

4. It was submitted on behalf of the alleged contemnors that they had

been inducted as new members,  had paid all  the instalments which the

society had demanded, and had been in occupation of the apartments for

last several years.  It was further submitted that the entire construction was

undertaken on the strength of deposits made by all the members including

the alleged contemnors and it would result in great prejudice, if they were

now asked to vacate the apartments after such a length of time.  It was also

submitted that the land in occupation of the society was sufficient enough

where one more building could be constructed and if  such possibilities

were explored, the interest of the alleged contemnors could also be taken

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care of.  Finding substance in the submission, following order was passed

by this Court on 25.10.2018:-

“We have heard Mr. A.K. Panda, learned senior counsel appearing  for  the  Administrator/Society  and  all  other learned counsel.   We direct  the Administrator  to  file  an affidavit indicating:

(1) The extent of land available where a Tower could be constructed;

(2) The extent of FAR available to the Society as on date;

(3) How many apartments could be constructed in the  open  piece  of  land  still  available  with  the society?; and

(4) The technical details including the timeline and the cost of construction which would be required to complete the project.

All these details shall be supported by technical appraisal by a qualified Architect.  The affidavit be filed within four weeks from today.”

5. Thereafter the matter appeared on 29.11.2018, when the following

order was passed:-

“Pursuant to our order dated 25.10.2018, an affidavit has  been  filed  by  the  Administrator  of  the  Modern Cooperative Group Housing Society Ltd.  The documents annexed  to  the  affidavit  indicate  that  quotations  were called for from the Architects and quotation submitted by the  Design  Enhance,  310,  S.G.  Shopping  Mall,  D.C. Chowk, Sector  – 9,  Rohini,  Delhi-110085 was accepted and work order was also issued on 20.11.2018.

Learned  Counsel  appearing  for  the  administrator submitted that the architect’s report is expected shortly and that  the  matter  be  suitably  adjourned  to  enable  the administrator to place on record complete documentation including  the  cost  analysis  as  well  as  the  number  of apartments that could be constructed in the new building.

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We accept the submission and adjourn the matter for six weeks, to enable filing of such appropriate affidavit.”

6. The subsequent order dated 10.01.2019 passed by this Court was

as under:

“In pursuance of order dated 29.11.2018 passed by this Court, an affidavit has been filed by the Administrator of  the  Modern  Cooperative  Group  Housing  Society Limited  on  07.01.2019.   The  affidavit  has  enclosed  an extract of the report given by the Architect who has opined that within the FAR available for the Society, new tower can be constructed in the existing plot with 18 apartments of the size of 83.46 sq.meters each. It is a matter of record that there are 14 claimants involved in the matter and as such four apartments could be constructed over and above the existing requirement.

At this stage, we deem it appropriate to solicit the response of the Municipal Corporation of Delhi (North), whether  such  tower  can  be  constructed  and  whether  it would be within the FAR permissible for the society.  Let a  copy  of  this  petition  be  served  upon  the  Municipal Corporation of Delhi (North) which shall file its response within three weeks from the receipt of the notice.   

We  also  direct  the  Administrator  to  convene  a meeting of the General Body of the Society so that the proposal submitted by the Architect could be discussed in the meeting and response of the General Body could be placed on record before the next date of hearing.

Learned  counsel  for  the  alleged-contemnors  shall also file individual affidavits of undertaking on behalf of every  single  alleged-contemnor  indicating  his/her willingness to deposit a sum of Rupees thirty lakhs into the account of the Society so that appropriate orders can be passed on the next date of hearing.  The affidavit  of undertaking must also indicate the time-line within which such deposit can be made.”

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7. Thereafter,  affidavits  were  filed  by  all  the  alleged  contemnors

indicating their willingness to deposit a sum of Rs.30 lakhs as stated in the

order  dated  10.01.2019.   A General  Body  meeting  was  convened  on

24.02.2019 which was attended by 73 members including 14 persons who

have been litigating and are interested in getting back the possession of

the apartments, whereas the alleged contemnors, having lost the status as

members,  could  not  vote.   43  members  voted  against  the  proposal  of

having a new building constructed, while 30 members voted in favour of

the proposal.  Nine Postal ballots received after the meeting showed that

all nine members had cast their votes in support of the new construction.

Thus, the voting pattern was:- 43 votes against the proposal and 39 votes

in favour of the proposal.   

8. The  matter  thereafter  came  up  on  28.02.2019  when  following

order was passed:-

“In  accordance  with  the  direction  issued  by  this Court  on  10.01.2019,  a  General  Body  Meeting  of  the Society  was  held  under  the  Chairmanship  of  the Administrator on 24.02.2019.  Minutes of the Meeting are enclosed in the Affidavit  tendered across the bar by the Administrator.  The affidavit is taken on record.

Mrs. Kiran Bhardwaj, learned counsel has also filed affidavit  on  behalf  of  some  of  the  alleged  contemnors pursuant  to  the  directions  issued  in  the  order  dated 10.01.2019.  11 of the alleged contemnors have thus filed affidavits,  which  are  taken  on record.   Copies  of  these affidavits be given to the other side.

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Further, pursuant to the direction issued on the last occasion, an affidavit has also been filed on behalf of the North Delhi Municipal Corporation, para 3 whereof reads as under:

“3.  That accordingly, on last date of hearing i.e. on 10.01.2019  this  Hon’ble  Court  has  directed  the Municipal Corporation of Delhi (North), to file its response  as  to  whether  such  tower  can  be constructed and whether it would be within the FAR permissible for the society.

In regard to the above order dated 10.01.2019, it  is  respectfully  stated  that  there  is  no  record pertaining to approved layout that there is no record pertaining to approved layout plan/completion plan of  Modern  Cooperative  Group  Housing  Society Limited  available  in  the  department,  so  as  to ascertain  the  balance  FAR  availing  for  further construction by the society.  Further, it is submitted that  new  tower  with  18  dwelling  units  can  be constructed  only  if  balance  ground  coverage  and FAR  is  available  as  against  permissible  ground coverage and permissible FAR prescribed for group housing  in  MPD-2021  under  clause  4.4.3,  B- Residential  Plot  –  Group  Housing  mentioning  as below:

1. Maxi,  Ground Coverage:

33.3% (in case addition of alteration of existing DUs for  availing  balance  FAR ground coverage upto 40% may be allowed.

2. Maximum FAR: 200

3. Height: NR  (Subject  to  clearance from AAI/Fire Department and other statutory bodies.

4. Parking: 2.0 ECS/100 sqm built up area and 0.5 ECS/100 sqm for  EWS/Service  Personal Housing.”

Since  the  Minutes  of  the  General  Body  Meeting  dated 24.02.2019  has  taken  a  particular  stand,  we  direct  the Administrator to place on record, for our perusal, complete record with respect to the said meeting including E-mails

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and letters received by the Administrator in respect of said meeting.

9. We have heard Mr. S.D. Singh, learned Advocate for the contempt

petitioners,  Ms.  Kiran  Bhardwaj,  learned  Advocate  for  alleged

contemnors,  Mr.  Praveen  Swarup,  learned Advocate  for  the  Municipal

Corporation of Delhi and all other learned Advocates.  Mr. S. D. Singh

very  fairly  submitted  that  if  the  contempt  petitioners  were  assured  of

possession of apartments, they would be having no objection to support

the cause of the alleged contemnors in having a new building constructed

by the society.  Consequently, the voting pattern which effectively was 43

votes against the proposal and 39 votes in favour of the proposal would

then drastically change and would be 29 votes against the proposal and 53

votes in favour of the proposal.

10. Some of the salient features in the matter are:-

1. The alleged contemnors have violated the orders passed by

this Court and despite having furnished appropriate undertakings,

have failed to  vacate  and hand over possession.   But  there  are

certain  equities  in  their  favour;  in  that  they  were  inducted  as

members not clandestinely but against the resultant vacancies after

expulsion  of  certain  members,  that  they  had  paid  all  the

instalments in time, that on the basis of such instalments paid by

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the members  including the  alleged contemnors the construction

was  completed,  and  that  they  were  put  in  possession  of  the

apartments soon thereafter.   

2. It is only as a result of the expulsion orders of the contempt

petitioners getting set aside that the alleged contemnors have to

vacate  their  apartments  and  make  way  for  the  contempt

petitioners.   

3. The society had raised amounts and was benefited from two

sets  of  persons  that  is  the  alleged  contemnors  as  well  as  the

contempt petitioners and the fact of the matter is that the society is

presently having funds to the tune of more than Rs.4 crores.   

11. Going by the reports made by the Architect a new building can be

constructed  with  18  apartments,  which  means  that  after  satisfying  the

requirements  of  all  the  alleged  contemnors  there  will  still  be  some

apartments left,  from the sale of  which money for construction can be

garnered.  

Furthermore, according to the Architect, within the FAR available

to  it,  the  society  can  construct  such  new  building.   The  Municipal

Corporation of Delhi has also in principle agreed that if FAR is available,

the  authority  would  not  have  any  objection  to  grant  permission  for

construction of a new building.

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12. In  the  circumstances,  though  we  are  considering  the  matter  in

contempt jurisdiction,  in our considered view ends of justice would be

met, if following directions are passed:-

a) All  the  alleged  contemnors  shall  vacate  their  respective

apartments on or before 31.08.2019.  The apartments so vacated

shall thereafter be allotted to those persons who were directed to

be re-admitted as members in terms of para 9 of the order passed

by  the  Registrar,  Cooperative  Societies  on  24.02.2012.   The

allotment shall  be done in the presence of an Official from the

Office of the Registrar, Cooperative Societies in a manner known

to law.   

b) Each of the alleged contemnors, if he or she desires to have

a new apartment in the newly erected building, shall deposit a sum

of Rs.10 lakhs with the Administrator of the Modern Cooperative

Group Housing Society Limited on or before 31.10.2019.  Along

with such deposit, an appropriate affidavit shall be filed by such

person (s) undertaking that in case any further amount (s) are to be

deposited towards the cost of construction, he or she shall abide

by such requisition scrupulously.  

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c) Upon such deposit and furnishing of an affidavit every such

person shall be re-admitted in the Society as a Member.

d) Within  one  month  from  the  date  of  this  order,  the

Administrator  shall  prefer  an  appropriate  application  annexing

therewith all the required documents including plans and drawings

and seek permission to erect a new building with 18 apartments.

Such application shall be preferred with the concerned appropriate

Authorities including Municipal Corporation of Delhi.    

(e) Municipal  Corporation  of  Delhi  which  has  agreed  in

principle that the permission for erecting a new building can be

granted,  shall  consider  said  application  and  take  appropriate

decision in the matter within one month from the date when the

application is preferred.   

(f) After the construction has begun, the Administrator shall be

entitled to initiate the process for having new members admitted

who are willing to deposit such sums as are required towards the

cost of construction of an individual apartments which could then

be allotted to them.

CONTEMTP PETITION (C) NOS.1505-1506 OF 2017 IN SLP (C) NOS.10375-10376 OF 2017 SANT LAL GUPTA & ORS. VS. UMESH KUMAR JAIN & ORS.                                                                                     

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(g) The Administrator shall also be entitled to have a fresh draw

of lots in the presence of an Official from the Office of Registrar,

Cooperative Societies in respect of the building to be constructed

so  that  each  of  those  18  apartments  could  be  allotted  to  the

concerned persons including the alleged contemnors herein.

(h) The alleged contemnors shall  have to find new or transit

accommodation  till  they  are  finally  put  in  possession  of  the

apartments so allotted to them after completion of construction.

The cost and charges in that behalf shall be borne by the alleged

contemnors  and they shall  not  be  entitled  to  have  any amount

reimbursed either from the society or from any of the members.   

(i) Whether the cost of construction must come entirely from

the allottees of apartments in the new building to be constructed or

whether the society would like to contribute in that behalf, is a

matter which ought to be decided by the society.  We may only

observe that the alleged contemnors had made their contribution

and as a matter of fact the society has funds to the tune of more

than Rs.4 crores available with it.   

13. In our view, the directions as aforesaid would not only ensure that

the contempt petitioners are put in possession of the apartments to which

CONTEMTP PETITION (C) NOS.1505-1506 OF 2017 IN SLP (C) NOS.10375-10376 OF 2017 SANT LAL GUPTA & ORS. VS. UMESH KUMAR JAIN & ORS.                                                                                     

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they  have  been  found  to  be  entitled  to  but  will  also  take  care  of  the

interests  of  the  alleged  contemnors  who  are  required  to  vacate  the

apartments  only  because  of  the  setting  aside  of  the  expulsion  of  the

contempt petitioners.  These directions, in our considered view is the only

solution in which the interests of all can be sufficiently taken care of.   

14. We, therefore, order accordingly.  This Contempt Petitions stand

disposed of.  No costs.   

..………….……………J.                                      (Uday Umesh Lalit)

..………….……………J.                                      (Sanjay Kishan Kaul)

New Delhi, May 08, 2019.