Dr. S.N.A. Rizvi And Ors. vs Registrar And Ors.
2002 Latest Caselaw 1042 Del

JUDGMENT

Khan, J.

1. This petition is a charter of complaints and demands filed by petitioners who are members of R-3 Society. Their complaints range from alleged mismanagement of the affairs of the society by the Administrator and his effort to stay put for years on but their demand substantially converges on holding of elections to the society.

2. It transpires that R-3 Society was superseeded on 9.4.1992 and Administrator was appointed to it. After he continued to hold office beyond three years. Petitioner filed CWP 1285/97 asking for holding of elections to the society and enquiry into its affairs under Sections 55 and 59 of DCSA. The petition was disposed of on 3.11.99 directing Administrator to hold elections within three months and to complete the requisite enquiry expeditiously. In compliance thereto Election Officer was appointed and election programme announced on 12.5.2000. But since elections could not be held somehow, petitioners again launched this second round of litigation by this petition. They pray that R-4 (Administrator) be directed to hold elections forthwith and R-1 (Registrar) to complete the inquiry under Sections 55/59. They have also sought quashment of demands raised against them after 3.11.99, when their first petition was disposed of and appointment of Auditor to scrutinize accounts of the society and also an architect/engineer to determine the extent of alleged illegal construction and for initiation of criminal proceedings against erring members, besides a quo warrant asking the Administrator to vacate the office.

3. R-1 (Registrar) has filed a short reply denying the allegations and explaining that elections were called and Election Officer appointed and that enquiry under Sections 55/59 could not be completed as society records were not handed over to Administrator. No explanation, however, has been furnished for non-holding of elections.

4. R-4 has filed his reply/counter pointing out that after election programme was announced it was discovered that almost all the members had gone by default in payment of society dues and were not eligible to vote and consequently no voter list could be prepared to complete the election process. Eversince defaulting members were asked to clear their dues, but in vain, rendering it impossible to hold the elections to the society. The society has explained that it was allotted land for 260 flats, later raised to 299 flats, but erstwhile managing committee had enrolled 343 members and those remaining members who could not be allotted flats were asking for refund to their money for which they had obtained awards and to satisfy these fresh demand was raised from the allottee members. It is also pointed out that R-4 had approached DDA for action against those who had carried out unauthorised construction and though DDA had issued notice to them but no action was taken in the matter.

5. Petitioners have filed a rejoinder to repell the stand taken by R-1 & 4 and have claimed that there was no bar for defaulting members to vote or to contest elections. It is submitted that even a society comprising of all defaulters was required to manage society's affairs and a method was to be devised to enable substantial number of members to participate in the election process. On the contrary fake and false grounds were being created to avoid elections and to perpetuate the terms of Administrator.

6. It all come to whether R-4's explanation for non-holding of elections pursuant to orders of this court dated 3.11.99 passed in petitioners first writ petition was plausible and liable to be accepted.

7. There is no dispute that the society was run by the Administrator since 1992, though his term could have normally lasted up to three years. Section 32(1) provides for appointment of an Administrator to manage the affairs of the society initially for a period not exceeding one year which is, however, extendable at the discretion of Registrar from time to time but which should not exceed three years in aggregate. It is surprising that Administrator should have continued in office for the last 10 years or more in derogation of the statutory mandate and on the spacious plea that the society was irredeemable as all its members had run in default and were reluctant to discharge their liability.

8. Needless to point out that the object behind supersession of the managing committee of the society and appointment of Administrator was to stem the rod in the society and bring it back to its normal health. And for this Section 32 of the Act provided for a maximum term of Administrator and in which he had to accomplish the task. He could not, therefore, continue indefinitely on the ground of illhealth of the society and yet shown no results to bring it back on rails. It is, therefore, no good to say that affairs of the society could not be set right because of non cooperation of its members or that elections could not be held to it despite the court direction because its members had failed to clear the default to become eligible for participation or contesting in the election.

9. The explanation furnished by the society also does not sound plausible because Administrator who had held the office for as long as seven years on 3.11.99 when this court directed holding of elections should have known the state of affairs of the society and whether there was any handle in holding the elections because of the default of members. It is neither indicated whether Administrator had taken any action against the defaulting members all these years or whether defaulting members were debarred from participation or contesting in the elections. The Administrator cannot have it both ways -- on the one hand fail to exercise his power under law against defaulting members and on the other set up the plea default of members for non-holding of elections. All this lends credence to allegations that Administrator wanted to perpetuate himself in the office on one pretext or the other.

10. Be that as it may, there is no gainsaying that elections were required to be held to he society which had remained under Administrator's thumb for as long as 10 years or more and yet it had not reportedly shown any sign of recovery. It is also not known whether all the members of the society had suffered some ineligibility to participate in the elections because of their default or whatever.

11. In any case all this was required to be examined by the Registrar (R-1) and it was his duty to assess and evaluate the affairs of the society form time to time and make sure whether Administrator had performed his role and whether something more was required to be done to remove any hurdle to pave way for the elections.

12. This petition is accordingly disposed of in this perspective by the following orders:-

"1. Both the Registrar and the Administrator are directed to take a necessary steps to hold elections to the society within six months from the receipt of this order. It shall be for them to remove any hurdle that may come in the way of completion of election process.

2. Registrar is further directed to take requisition action to conclude inquiry under Sections 55/59 of the Act within four months from receipt of this order and take necessary follow-up action.

3. It shall be open to petitioners to take remedy under law for determining validity of any demand raised against them and to obtain necessary orders within the prescribed time frame.

4. All other reliefs sought by petitioners are declined in the facts and circumstances of the case."