Sunder Lal vs Rehabilitaton Ministery ...
1990 Latest Caselaw 231 Del

JUDGMENT

V.B. Bansal, J.

(1) The short question for consideration in this writ petition is about the correctness of the decision of the Rehabilitation Ministry Employees Cooperative House Building Society Limited (hereinafter to be referred to as the 'Society') conveyed vide letter dated April 6, 1988 to the petitioner that he did not fulfill the basic conditions of being an employee or ex-employee of Ministry/Department of Rehabilitation or any of its subordinate offices and so could no longer be treated as a valid member of the Society in terms of Section 2(k) of the Delhi Cooperative Societies Act (hereinafter to be referred to as the Act).

(2) The brief facts necessary for the decision of this writ petition are as follows:-

(3) Respondent No. 1-Society was registered under the Bombay Cooperative Societies Act in the year 1959 and formed with the object of acquiring land to develop it and to be allotted to the members for construction of houses. The petitioner joined the Estate Office, Government of India on November 24, 1942 and continued to work in the Directorate of Estates.

(4) The Ministry of Rehabilitation was merged with the Ministry of Works and Housing as its department under one Minister in the year 1962. The Department of Rehabilitation continued to be a part of the Ministry of Works and Housing till 1965. Sunder Lal, petitioner, was enrolled as a member of respondent No. 1 on May 30, 1970. Sixty acres of land situated in Malviya Nagar was received by the Society from the Government of India for development and for allotment of residential plots to the bona fide members.

(5) A letter dated September 6, 1974 was received by the petitioner from the Society stating therein that his name was removed from the list of members of the Society on the plea that he failed to furnish an affidavit and other information in spite of writing of letters. A reply was sent to this letter of the Society by the petitioner. Naples of 36 persons were removed from the membership of the Society by the managing committee upon which a letter was written to the Registrar by them complaining about the mala fide action of respondent No. 1. The aforesaid order of removal of the names of 36 persons including that of the petitioner was set aside by the Registrar vide letter dated August 7, 1981.

(6) The matter with regard to the expulsion of the petitioner and others was taken up in arbitration proceedings and an award dated January 18, 1983 was passed against the Society. This award was challenged unsuccessfully by the Society before the Financial Commissioner who dismissed the appeal vide order dated June 20, 1984. The Society filed a writ petition No. 2149 of 1984 in the High Court challenging the aforesaid order of the Financial Commissioner. The writ petition was dismissed in liming on March 8, 1985.

(7) In compliance of a letter dated June Ii, 1985 the petitioner sent a cheque dated July 8, 1985 for Rs. 35.730'- to respondent No. 1. The petitioner had also sent a certificate dated July 30, 1985 issued from the Office of the Directorate of Estates, Ministry of Works and Housing, Government of India, New Delhi to respondent No. 1.

(8) The Directorate of Estates, Ministry of Works and Housing where the petitioner was employed, was at one time known as the Ministry of Works and Housing and Rehabilitation having two departments, i.e. Department of Works and Housing and the Department of Rehabilitation under one Minister. The question of membership of the petitioner had otherwise been upheld right up to the High Court However, a show cause notice dated January 21, 1986 was sent to the petitioner by the Society to which a detailed reply dated February 19, 1986 was sent. In supersession of the show cause notice a fresh show cause notice was sent to the petitioner which was received by him on February 20, 1986. A reply dated March 14, 1986 was sent by the petitioner. The matter relating to the verification of the employment status of the petitioner was kept in the agenda of the General Body Meeting of the Society for April 10, 1988. However, without waiting for the General Body Meeting of the Society, the impugned letter was written to the petitioner informing him that his membership stood terminated.

(9) This writ petition has been contested by the Society-respondent No. 1 as also by the Government of India-respondent No. 4.

(10) Respondent No. 1 has, inter alia, pleaded that High Court had in its order dated March 8, 1985 in writ petition No. 214 of 1984 clarified that the Society could take up the question for consideration about the correctness of the enrolment of the petitioner and it is on that basis that the question about the validity of the membership of the petitioner has been considered afresh. It has also been pleaded that this writ petition involves a mixed question of law and fact and so could not be entertained. It is further pleaded that the land measuring 60 acres situated in Malviya Nagar, New Delhi was received by the Society in the year 1971-72 for development to be allotted to the members of the Society but this allotment was subsequently cancelled by the Government of India in 1979 on account of which a writ petition was filed by the Society in this Court which was allowed on September 1, 1980. Special Leave Petition being Civil Writ 3762 of 1981 was filed before the Supreme Court of India by the Delhi Development Authority in which the matter was settled and the Department of Rehabilitation made a fresh allotment of land to the Society in Malviya Nagar on the condition that only those members would be allotted land who were members of the Society as on September 1, 1980. It has further been urged that the petitioner was not an employee of the Ministry of Rehabilitation or any of its Subordinate Office and has throughout been an employee of the Directorate of Estates which has never been a subordinate office of the Ministry or Department of Rehabilitation and so the Ministry of Home Affairs has rightly not certified his employment status. A prayer has, therefore, been made for the dismissal of the writ petition.

(11) Respondent No. 4 has, inter alia, pleaded that the petitioner had never been an employee of the Ministry of Rehabilitation or its subordinate offices at Delhi/New Delhi at any time as he has been working in the Directorate of Estates under the Ministry of Works and Housing under the Ministry of Urban Development since joining service and continued there till retirement. It has further been pleaded that the disciplinary authority of the petitioner was distinct from the employees of the Department of Rehabilitation. It is further pleaded that only those employees could become valid members who were covered by the relevant bye-laws as in force on September 1, 1980 in view of the terms of allotment of the land to the Society and the amendment in the bye-laws introduced in the year 1986 could not be of any help to the petitioner. It is also pleaded that the petitioner was not covered by the bye-laws as they stood before the amendment of 1986 and so he has rightly been removed from the membership of the Society.

(12) In order to appreciate the contentions of the learned counsel for the parties it would be necessary and convenient to quote the relevant provision of Clause 5(5) of the Rehabilitation Ministry Employees Cooperative House Building Society Limited Bye-laws (hereinafter to be referred to as the 'Bye- laws') :- Clause 5 "NO person shall be a member unless : (a) he/she is a resident in the Union Territory of Delhi and (i) .................. he/she is a displaced person provided that the Managing Committee of the Society by a majority decision at a duly convened meeting shall have the right to relax this condition. (ii) he/she is an employee or ex-employee of the Ministry of Rehabilitation including its subordinate offices in Delhi/New Delhi or if posted outside wants to settle in Delhi/New Delhi after retirement. (iii) he/she is/has been an employee of the Ministries in Delhi/New, Delhi, of which the Department of Rehabilitation has been a part from time to time, under one Minister/Minister of State etc."

(13) Proposal for the addition of Clause 5(1) (a) (iii) was made by the Society on December 14, 1980 which after approval of the Lieutenant Governor was registered by the Registrar on March 10,lv86 with retrospective effect, i.e. with effect from January 10, 1968. Admittedly, Clause 5(l)(a)(iii) was not in existence on September 1, 1980. According to Section 12 of the Delhi Cooperative Societies Act an amendment of the Bye-laws of the Cooperative Society shall come into force on the date it is registered unless specific date of its coming into force is specified. Under Section 88 of the Act the Lieutenant Governor is empowered by general or special order to be published in Delhi Gazette to exempt any cooperative society or any class of cooperative societies from any of the provisions of the Act or he may direct that such provision shall apply to such societies or class of societies with such modification as may be specified in the order. A statutory notification dated October 27, 1987 was published in the Official Gazette under which the Lieutenant Governor, Delhi directed that the amended bye-law 5(l)(a)(iii) will have retrospective effect from January 10, 1968 instead of March 10, 1986. The Lieutenant Governor has exercised his statutory discretion giving retrospective effect to the amendment from January 10, 1968 and all concerned persons including Courts are required to give it full effect. It is, thus, clear that the amended provision of Clause 5(1)(a) (iii) would be deemed to have been in force from January 1968 and the petitioner would certainly be entitled to claim that he is covered by the clause.

(14) Vide Gazette Notification dated December 6, 1968. the Government of India (Allocation of Business) Rules, 1961 were amended. Entry No. 19 of the First Schedule was substituted as 19, Ministry of Works, Housing and Rehabilitation'. There has not been any dispute with regard to the aforesaid amendment. It is the case of the petitioner that the Ministry of Works, Housing and Rehabilitation was under one Minister, i.e. Shri Mehar Chand Khanna and this part of the assertion is not disputed.

(15) Learned counsel for the petitioner has submitted that Sunder Lal joined Government Service on November 24, 1942 and continuously worked in different capacities in the Directorate of Estates wherefrom he retired as Deputy Director of Estates on July 31, 1984. He has further submitted that the Directorate of Estates was a subordinate/attached office of the then Ministry of Works, Housing and Rehabilitation and referred to a certificate dated July 30, 1985 issued by the Assistant Director of Estates, Government of India, Ministry of Works and Housing Directorate of Estates, New Delhi furnished by the petitioner to the Society and it was conclusive proof of the petitioner being an employee of a department under one Minister-in-Charge of the Ministry of Works, Housing and Rehabilitation covered under Clause 5(1) (a) (iii) of the Bye-laws.

(16) The plea taken up by respondent No. 4 has been that the "petitioner had never been an employee of Ministry of Rehabilitation or its subordinate offices in Delhi/New Delhi at any time...... The Directorate of Estates has never been a part of the Department of Rehabilitation or even subordinate to it". Respondent No. 1 has also taken up the plea that "the petitioner was not an employee of Ministry of Rehabilitation or any of its subordinate offices and is, therefore, not eligible for membership of the Society according to its bye-laws". A reliance has also been placed on the letter dated September 15, 1987 of the Deputy Secretary to the Government of India, Ministry of Home Affairs, Department of Internal Security addressed to the President of the Society wherein a request has been made that Sunder Lal be asked to produce his service book in original for verification of his employment with the Ministry, Department of Rehabilitation.

(17) From a perusal of the aforesaid assertion made by the respondents it is clear that they have not examined the matter to find out as to whether the petitioner is covered by Clause 5 (l)(a)(iii) of the Bye-laws or not. It has never been the case of the petitioner that he was an employee of the Department of Rehabilitation. In fact, he has throughout been claiming that he was an employee of the Directorate of Estates which was under one Minister-in-Charge of the Ministry of Works, Housing and Rehabilitation. Considering these facts we have no hesitation in coming to the conclusion that the case of the petitioner is fully covered by the aforesaid Clause (iii) and.so he is entitled to continue to be a member of the Society.

(18) Learned counsel for respondent No. 1 has submitted that the petitioner is not covered by the definition of member as contained in Section 2(k) of the Act and on that account the Managing Committee was justified in issuing the impugned letter. We do not find any substance in this submission. It is not disputed that the final decision with regard to the validity of the membership has to be taken by the General Body of the Society. In the instant case, the impugned decision has been taken by the Managing Committee inspite of the fact that this matter was to come up before the General Body of the Society on April 10. 1988. On this account also the impugned letter can not be sustained.

(19) As a result the writ petition is allowed with costs against Respondent No. 1. The decision of the Managing Committee that Sunder Lal petitioner does not fulfill the basic conditions so as to enable him to be a member of the Rehabilitation Ministry Employees Cooperative Housing Building Society Limited is set aside. The respondents shall recognise the petitioner to be a valid member entitled to the allotment of a plot of land. We quantify the costs as Rs. 2500.00.