Sk. Jalaluddin vs The State Of West Bengal on 24 April, 2020


Supreme Court of India

Sk. Jalaluddin vs The State Of West Bengal on 24 April, 2020

Author: 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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