Rehabilitation Ministry ... vs V.K. Bansal And Ors.
1990 Latest Caselaw 228 Del

JUDGMENT

V.B. Bansal, J.

(1) Rehabilitation Ministry Employees Cooperative Housing Building Society Limited (hereinafter to be referred to as the 'Society') has filed this writ petition under Articles 226 and 227 of the Constitution of India praying that the award dated June 12, 1987 of Major General H.N. Shingal (Retired) and the orders dated December 3, 1987 and April 13, 1988 of Shri Madan Jha, Presiding Officer, Delhi Cooperative Tribunal, Delhi be quashed.

(2) The admitted facts are that V.K. Bansal respondent No. 1 applied for membership of the Society by moving an application supported by affidavit. He was enrolled as a member of the Society on December 12, 1973. A share certificate No. 571 was also issued to him as required under the law. He paid a sum of Rs. 2500.00 at the time of his enrolment. A letter dated. May 26, 1976 was written to respondent No. 1 by Shri A.L. Handa, Administrator of the petitioner informing him that his name has been removed from the list of 'effective eligible members' as he has not been an employee or ex- employee of the Ministry of Rehabilitation including its sub ornate officers in Delhi/New Delhi as required under the provision of the bye-laws of the Society. A letter dated March 1, 1977 was written by respondent No. 1 to the Administrator of the .petitioner controverting the allegations contained in the aforesaid letter and making a request that his name be approved as a valid member of the Society. V.K. Bansal, thereafter, continued getting letters from the Society including a request for sending an affidavit. This request was complied with an accordingly an affidavit dated August 17, 1977 was sent to the Society by him.

(3) A letter dated May 24, 1983 was sent to respondent No. 1 by the society under the signatures on its Secretary stating therein that he had already been informed about the inability of the Society to treat him as its regular member and that the Society in its General Meeting held on December 20, 1981 decided to refund the amount. Accordingly, a cheque for the amount deposited by him was also sent along with the letter.

(4) Civil Writ No. 1645 of 1983 was filed by V.K. Bansal thereby challenging the aforesaid decision of the Society. This writ petition was dismissed by the Court vide order dated May 7, 1984 holding "we are of the view that the petitioner as such was not eligible to become a member of the Society at all." This matter came up before the Supreme Court in Special Leave Petition (Civil No. 1051 of 1984) and was allowed holding that "the disputed question of fact cannot be gone into by the High Court under Article 226 of the Constitution. The appellant has an alternate remedy under Section 60 of the Cooperative Societies Act." Accordingly, on a request by respondent No. 1 the dispute relating to his membership was referred to arbitration An order dated June 12, 1987 was passed by the Arbitrator in favor of V.K. Bansal and a direction given to the Society "to treat the claimant as a valid member of the Society, ab initio, conferring all right that he is entitled to as such including allotment of a plot of land in accordance with the Rule of the Society". The Society felt aggrieved from this order of the Arbitrator and so filed an appeal before the Delhi Cooperative Tribunal. This appeal was dismissed by Shri Madan Jha on December 3, 1987. A review petition was also filed by the Society before the Delhi Cooperative Tribunal praying for a review of the order dated December 3, 1987 and to hold that V.K. Bansal has never been a valid member of the Society. This review petition has also been dismissed by the aforesaid tribunal vide judgment dated April 13, 1988 and so this writ petition has been filed.

(5) Learned counsel for the petitioner has submitted that V.K. Bansal respondent No. 1 had never been an employee of ex-employee of the Ministry of Rehabilitation or any of its subordinate offices. It has al.so been submitted that by giving wrong information, respondent no, I obtained membership of the Society and it has been clarified by Government of India that he had never been its employee. The question for consideration, however, is as to whether the petitioner is entitled to challenge in these proceedings under Articles 226 and 227 of the Constitution of India the decision of the Arbitrator confirmed by the Tribunal in appeal who had even dismissed the review application.

(6) As already referred to in the Special Leave Petition filed by V.K. Bansal against the Society it has clearly been observed by the Supreme Court that the disputed questions of fact cannot be gone into by the High Court under Article 226 of the Constitution.

(7) One of the grievances of the learned counsel for the petitioner has been that the arbitrator after concluding the arguments gave time to the petitioner to file written arguments in confirmity with the oral submission uptil June 15, 1987 but without waiting for the same he gave an award on June 12, 1987 itself and so he has misconducted himself and the proceedings. The submission of the learned counsel for the petitioner has been that this was a sufficient ground for accepting this writ petition.

(8) We do not agree. In the appeal filed before the Delhi Cooperative Tribunal a grievance was made that the Arbitrator gave the award even before the date fixed for filing of the written arguments. This submission has been dealt with by the learned Tribunal who has considered the arguments independently and upheld the decision of the Arbitrator. He has referred to the different certificates relating to the employment of the respondent No. 1 including the letter dated July 20, 1987 issued by the Deputy Secretary to the Government of India staling therein that "Shri V.K. Bansal was an employee of Government of Himachal Pradesh and was delegated powers under Sec. 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 for management and disposal of the properties transferred to the Government of Himachal Pradesh". We may also note that the Arbitrator and the Tribunal have referred to the certificate dated December 24, 1982 issued by the Deputy Secretary, Revenue-cum-Chief Settlement Commissioner, Himachal Pradesh. A review petition was filed by the Society reiterating its claim that respondent No. 1 was not entitled to be a member of the Society but it was again negatives and ultimately the review petition was also dismissed. The plea of the Society has been that respondent No. 1 could not become a valid member of the Society. This plea has not been accepted by the Arbitrator who held that respondent No. 1 has rightly been enrolled as a member since he was appointed by the Government of India by a notification to perform duties of the Settlement Commissioner in respect of the land of the Central Government. As already referred above this case is based on the award given by an Arbitrator and confirmed by the Appellate Authority. There has not been any allegation of misconduct on the part of the Arbitrator. The law is well settled that it would not be misconduct on the part of an Arbitrator to give an erroneous decision even though the error may be fact or law and/or his findings of fact be not supported by evidence. It is only if there is legal proposition which is the basis of the award and this is erroneous that the award can be set aside. Reference in this regard is made to the case Food Corporation of India v. Joginderpal Mohinderpal & Another 1989 (2) Supreme Court Cases 347.

(9) We may also note that respondent No. 1 had moved an application for being enrolled as a member giving the correct position in his affidavit dated January 28, 1974 that "I am an employee since July 6, 1971 till date as Settlement Officer (Rehabilitation) and prior to that I was with the Delhi Administration from January 1, 1967 to July 5, 1971". He has also specifically stated that "he was presently posted as Sub Division Magistrate, Una, Himachal Pradesh". There is nothing on record to suggest that the certificate dated December 24, 1982 issued by the Deputy Secretary, Revenue-Cum-Chief Settlement Commissioner, Himachal Pradesh was not a genuine document or that it was procured by respondent No. 1 by undue influence or by making some false representation to the concerned authority who had issued the same.

(10) A writ in the nature of certiorari can be issued only if the order of the tribunal or Subordinate Court suffers from any errors of jurisdiction of a from breach of the principles of natural justice or is vitiated by a mainfest or apparent error of law as held by the Supreme Court in Harbans Lal v. Jagmohan Saran, unreported judgment' (Supreme Court) 1986 (1) 28.

(11) It is, thus clear that after and order from the Supreme Court of India that the question of fact has to be decided by the appropriate authorities and not by the Delhi High Court, the matter has been decided by the Arbitrator and upheld by the Tribunal exercising the powers vested in him under the Delhi Cooperative Societies Act and the Rules. This Court cannot substitute its own opinion or finding to set aside a finding of fact by the appropriate authorities. This Court is not sitting as an appellate court against the decision of the Arbitrator or the Tribunal and so we do not find any ground to interfere in the matter.

(12) Consequently, the writ petition is dismissed with costs of Respondent No. 1. We quantify the costs as Rs. 2500.00 . Other respondents shall however, bear their own costs.