O P SETHI Vs. LT GOVERNOR

JUDGEMENT

(1.) WE are of the considered view that Rule 25(l)(c) is attractted in those cases where the properties are held benami. Having come to this conclusion, there seems to be little difficulty in holding that the said rule cannot apply in the cases where properties are acquired by transmission/devolution. WE feel that Rules 25 and 35 of the said Rules have to be read in different contexts. The former takes care of the cases of acquisition of membership or its transfer and the latter the cases of transmission etc. The view, which we have taken, we feel, will give a harmonious construction to the provisions of the said Rules and bye-laws, referred to above. A contrary view, in our opinion, will not only make bye-law 9 redundant but may also lead to unreasonable and unamolous results. For example, member on being granted membership of a housing co-operative society constructs a house on the plot subleased in his favour. He registers his only heir as his nominee. During his life time the said heir also himself/herself acquires a residential house of a plot of land for construction of residential house. It will be extremely unreasonable if on the death of the member, the said heir is told that he/she having incurred disqualification as per rule 25, membership and property of the deceased could not be transferred in his/her favour. More so when the Act, the Rules and the bye-laws are silent on the question as to what will happen to the property after the death of the member in such a situation. WE feel the latter part of bye-law 9 is intended to take care of such a situation.

(2.) NO such plea was raised by the society before the Deputy Registrar, whose order has been assailed before us. It is too late in the day now to permit the society to raise such a plea. It does not even merit any consideration. The respondent-society had acceded to the prayer of the petitioner for transfer of his membership in favour of Smt. Parvati Devi and had in fact recommended the execution of sub-clause in her favour. Even otherwise we find from the membership register of the society, which was produced before us during the course of hearing that society had admitted new members after the transfer of the plot in question in favour of Smt. Partavati Devi and there was no bar in her being enrolled as a new member in her own right. That apart, even the stand of the counsel for the Lt. Governor and the Registrar is that the said respondents, whose orders have been impugned in this petition have not based their decision, disqualifying the petitioner, on his membership which he acquired in the year 1966.