Manpower Cop. Group Housing Socy. ... vs Vinod Sharma And Ors.
2002 Latest Caselaw 1189 Del

JUDGMENT

Khan, J.

1. Managing Committee of petitioner society was superseded and administrator appointed to it by order dated 26.4.90. The administrator thereafter enrolled two new members as one member Smt. Aishi Jafri had expired and the other H.N. Sethi was found non-existant and after General Body had recommended their expulsion. Newly enrolled members deposited cost of construction and equalisation charges and their case was sent for approval to Registrar. Meanwhile Registrar issued a general circular dated 2.4.93 advising administrators of all subsisting committees not to enroll and member during supersession of the Managing Committee. On this administrator returned their construction cost and other deposits made by them which was accepted by them without prejudice to their rights and contentions. These respondents then raised a dispute before Registrar and claimed that they were duly enrolled and that Registrar's general directive had no impact on their enrollment. Meanwhile elections were held to the society and new managing committee took over. Some four persons claimed that they were also enrolled members years back. The Registrar passed award dated 30.1.95 on this upholding membership of R-1 & 2. The society took an appeal against this. The matter was remanded to the Registrar who by order dated 15.1.99 reaffirmed his first order approving membership of R-1 & 2 on the ground that Registrar's general directive dated 2.4.93 was issued after enrollment of the respondents and also because two vacancies existed at the relevant point of time. The society took appeal against this which was dismissed and Registrar's orders affirmed. Petitioner society has now filed this writ petition challenging the two orders of Registrar and tribunal in a repeat exercise by and large on similar grounds and the issue that falls for consideration is:-

(1) Whether administrator's action of enrolling R-1 & 2 was violative of Registrar's directive dated 2.4.93 or faulty on some other count including alleged breach of Rules 29 and 30 of the relevant rules.

2. The case of petitioner society is that the award passed by Arbitrator and as affirmed by Tribunal was erroneous and unjustified as no clear vacancy existed on 8.3.93 when R1-2 were enrolled by the Administrator and as Registrar had not approved the expulsion proposal of two other members dated 16.1.93. It is also submitted that Administrator's action to enroll these members was in contravention of his own General Directive dated 2.4.93 whereby he had restrained Administrators of all superseded societies from enrolling any new member. The enrollment was also violative of Rule 29 of the Rules which required an enrollment of member 30 days prior to the holding of General Body Meeting. But in the present case R1-2 were enrolled on 30.3.93 and General Body Meeting was held on 4.4.93. All this showed that Administrator had enrolled these respondents in hot haste as his term was to expire on 31.3.93 and new elections to the society were to be held on 4.4.93. Lastly, it is pointed out that these respondents had received back their deposited money and as such they had no locus to raise a dispute under Section 60 and to seek arbitration on the status of their membership.

3. R1-2 have filed their counter justifying the award passed by the Arbitrator and the order of Tribunal. It is asserted by them that there were two clear vacancies available as on 8.3.93 because one member Smt. Jafri had expired and the other H.N. Sethi was found non-existent. Their expulsion was a mere formality which in any case was approved on 27.1.93 by the Registrar. It is submitted by them that Registrar's directive had no retrospective operation and had no bearing on their enrollment. Moreover, the expelled members had not felt aggrieved of their expulsion and it was not for the society to rack-up the issue and deprive them of their otherwise valid membership. It is also denied by them that they had deposited the share money, etc. after the prescribed limitation period of 14 days.

4. R-5 has also filed his counter affidavit claiming that he had become a member of petitioner society way back in 1987 and that enrollment of R1-2 was not in order. We have dealt with his other writ petition filed by him on the subject matter separately in which he had only made grievance about his seniority position and in which he was granted liberty to take an appropriate remedy for that.

5. As a matter of fact, none of the contentions raised by the society to oppose enrollment of R1-2 stands scrutiny and for a variety of reasons. Firstly, it is not disputed that one of the members Smt. Jafri had died and the other H.N. Sethi was found non-existant. It is not, therefore, correct to contend that no clear vacancy existed prior to 8.3.93 when R1-2 were enrolled as members. Moreover, no fault could be found also with expulsion proceedings initiated against them. It is a matter of record that General Body of petitioner society had resolved to expel them on 4.4.93 and had sought Registrar's approval for that. If Registrar took his own time to grant such approval, it could not be held against them. Nor did it reflect on the existing vacancy position as on the dat of their enrollment, more so when their expulsion, which was more in the nature of formality, was eventually approved by Registrar on 27.1.93. It is true that under Rule 36(3), Registrar's approval was to take effect from the date of such approval. But in the present case, it can't be overlooked that General Body Resolution dated 4.4.93 of petitioner society was passed on the availability of two clear vacancies existing as on 8.3.93 when R1-2 were enrolled.

6. We also find no merit in the plea that Administrator's action had violated Rule 29 which stipulated that no member should be enrolled within one month prior to the date of General Body Meeting.

7. It appears that petitioner society was treating the date of enrollment on 30.3.93 as against 8.3.93. That being so, question of breach of Rule 29 does not arise. Nor does the acceptance of deposited amount by R-1 without prejudice to their rights and contentions can be held to be any waiver by them to alter the position in the circumstances of the case.

For all this, we find no merit in this petition which is dismissed.