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Supreme Court of India
Sk. Jalaluddin vs The State Of West Bengal on 24 April, 2020Author: Vineet Saran
Bench: Vineet Saran, Hemant Gupta, M.R. Shah
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NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
M.A. NO. 3082 OF 2018
IN
SPECIAL LEAVE PETITION (C) NO. 6300 OF 2018
SK JALALUDDIN & OTHERS …….PETITIONERS/
APPLICANTS
VERSUS
THE STATE OF WEST BENGAL AND OTHERS
……. RESPONDENTS
ORDER
Special Leave Petition (C) No. 6300 of 2018 was filed by
six petitioners (applicants herein), who were all members of the
respondent No.4 Khowab Housing Cooperative Society Ltd.
(for short “Housing Society”). The same was dismissed on
28.03.2018 by the following order:
“Heard learned counsel for the petitioners
and perused the record.
We do not find any ground to interfere with
Signature Not Verified
Digitally signed by
the impugned order.
DEEPAK SINGH
Date: 2020.04.24
16:59:10 IST
Reason:
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The outstanding dues may be paid
immediately except for Rupees One Lakh,
which may be paid within six weeks from
today.
The special leave petition is disposed of in
above terms. Pending applications, if any,
are also stand disposed of.”
2. The six petitioners (applicants herein), then filed this
M.A. No. 3082 of 2018 on 26.11.2018 with the following
prayers:
“a. Allow the instant application.
b. Direct the Secretary or the concerned officer,
Khowab Housing Cooperative Society to accept
the outstanding dues paid by Petitioner Nos. 4 & 6
as stated in Para 5 of the instant Application and
hand over the possession of the flats;
c. Direct the Secretary or the concerned Officer,
Khowab Housing Cooperative Society to issue
NOC or confirmation letter for Home Loan to the
Bank and grant extension of time for paying
outstanding dues;
or
d. Pass such further order(s) as this Hon’ble Court
may deem fit and proper in the interest of justice.”
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3. Briefly stated, the facts of this case are that all the six
petitioners in the Special Leave Petition were members of the
respondent No.4Housing Society, which was formed with the
objective to construct 48 flats for its 48 members, at a price of
approximately 1617 lakhs per flat. The Housing Society was
allotted a residential flat measuring 2586.24 square meters by
the Asansol Durgapur Development Authority (ADDA) on lease
for a total consideration of Rs. 67,05,745/. The 48 members of
the Housing Society were required to deposit a sum of Rs. 3.86
lakhs each towards the cost of land etc., which was deposited
by all the 48 members (including the six petitioners) and thus a
total amount of Rs. 185.28 lakhs was contributed by the
members.
4. After the construction of the flats was completed, the total
cost of each flat came to Rs. 24 lakhs, and as such all the 48
members were required to deposit the said amount. All the
members of the Housing Society, except the six petitioners, were
allotted the flats and have deposited the balance amount. The six
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petitioners had deposited only the initial amount of Rs. 3.86
lakhs each, and nothing more.
5. The Housing Society sent several communications to the
petitioners to pay the balance amount for allotment of flat and on
24.8.2014, the Society unequivocally intimated the petitioners
that any member, who continues to default in payment of his
dues towards allotment of flat to him by the Society for more
than six months without a break, may be expelled from the
Society. The petitioners failed to make the deposit and thus on
4.5.2015, the Housing Society gave one last opportunity to the
defaulting members (petitioners/applicants herein) to clear the
dues, failing which they would be expelled from the Society.
Since the petitioners failed to deposit the required amount within
the specified time, in terms of Rule 133(1) of the West Bengal Co
operative Societies Rules, 2011, the Board of Directors of the
Housing Society, by resolution dated 27.05.2015, expelled the
petitioners from its membership. The decision to expel the
petitioners from the membership of the Housing Society was duly
communicated to them. The said decision was also
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communicated to the Registrar, Cooperative Societies, West
Bengal on 07.07.2015. The Registrar, Cooperative Societies,
after giving opportunity of hearing to the petitioners, directed the
Housing Society to prepare uptodate demand of each of the
defaulting members and the petitioners were granted time up to
27.10.2016 to pay the balance amount, failing which the decision
of the Board of Directors of the Housing Society for expulsion of
the petitioners from the Housing Society would come into effect.
6. Challenging the said order of Registrar, Cooperative
Societies, the petitioners filed a Revision before the Government
of West Bengal. The Principal Secretary to the Government of
West Bengal, after giving opportunity of hearing to the
petitioners, dismissed the Revision vide its order dated
20.01.2017, and directed the Housing Society to raise uptodate
demand from all the six petitioners by 30.01.2017 and the
petitioners were directed to make payment by 28.02.2017,
failing which the decision of the Board of Directors, expelling the
petitioners, would come into effect.
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7. The petitioners then challenged the said order of the State
Government by filing Writ Petition before the High Court, which
was dismissed vide order dated 17.01.2018. The High Court, in
its detailed judgment, has recorded that in a meeting of the
Housing Society held on 01.12.2014, the issue of cost of
construction was discussed and the petitioners, who were
present in the said meeting, upon perusing the relevant
documents of the Society, agreed to pay the balance sum of
money. The findings recorded by the authorities below were
affirmed by the High Court. It was also noted that the
remaining 42 members of the Society had already deposited the
entire enhanced amount of Rs. 24 lakhs, while it was only the
petitioners, who had not made any deposit beyond the initial
deposit of Rs. 3.86 lakhs each, and that there was no objection
raised by majority of the members of the Society to the
enhanced cost of the flats, and because of the petitioners not
depositing the balance amount, the other members of the
Society were facing inconvenience. The High Court also
recorded that “counsel for the appellants/writ petitioners
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submitted that his clients were ready to pay the remaining
balance amount”. While dismissing the Writ Petition, the High
Court directed the Housing Society to furnish the outstanding
dues of the petitioners within 15 days and as a last opportunity,
gave the petitioners further one month’s time to deposit the
balance amount, failing which, the petitioners would be
restored back to the position as it existed prior to the decision
of Housing Society expelling them as its members.
8. Challenging the said judgment of the High Court, the
petitioners filed Special Leave Petition No. 6300 of 2018 before
this Court, which has been dismissed on 28.03.2018 by the
order already quoted above.
9. After nearly six months of the dismissal of the Special
Leave Petition, this miscellaneous application, with the prayers
as quoted above, has been filed on 26.11.2018.
10. The contention of the petitioners in this application is that
the cost of the flats was arbitrarily enhanced and that though,
after the order of the High Court, some of the petitioners had
deposited certain amount (not the demanded amount) directly in
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the bank account of the Housing Society, but the same was
returned to them. All the petitioners were also refunded Rs. 3.86
lakhs each, initially deposited by them. It was contended on
behalf of the petitioners that the Housing Society did not issue
noobjection certificate (NOC) for obtaining loans from the bank
and hence, the balance amount could not be paid by them.
11. Per Contra, the respondent No. 4 Housing Society has
contended that within 15 days of the order dated 28.03.2018
passed by this Court, the petitioners sent a letter dated
04.04.2018 to the Housing Society requesting it to accord
permission for bank loan, so as to enable them to pay the
balance amount. It was also contended that there was no
condition in the order passed by this Court on 28.03.2018
requiring the petitioners to pay the balance amount only after
obtaining the bank loans, and as such, since the balance amount
was not paid by any of the six petitioners within the time granted
by this Court, their right to allotment of flats had been forfeited.
It was also submitted that the six flats have already been allotted
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to six other members, who all have deposited the requisite
amount and have taken possession of their respective flats.
12. From the aforesaid facts, it is clear that besides the initial
amount of Rs. 3.86 lakhs, the petitioners did not deposit any
further amount and kept disputing the demands raised by the
Housing Society. The order expelling the petitioners from the
membership of the Society, was passed way back in May, 2015,
which order was affirmed by the Registrar, Cooperative
Societies, West Bengal as well as the Principal Secretary to the
State Government, and the Writ Petition filed by the petitioners
was also dismissed. On each occasion, the petitioners were
granted time to deposit the balance amount, which they did not
comply. They have not even complied with the order passed by
this Court on 28.03.2018. After the expiry of time granted by
this Court to the petitioners to deposit the balance amount, the
order of the Society expelling the petitioners had come into effect
and thereafter the six flats have already been allotted to six
different persons, who have deposited the requisite amounts.
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13. Such being the factual background of this case, we are of
the opinion that prayers made in this application, do not deserve
to be granted. Accordingly, this Miscellaneous Application is
dismissed.
No order as to costs.
…………………………..………..J.
[R.F. NARIMAN]
…………………………..………..J.
[VINEET SARAN]
NEW DELHI;
APRIL 24, 2020.
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