Delhi High Court
Rajeshwer Kumar Gupta vs Lt. Governor Of Nct Of Delhi & Ors. on 25 September, 2008
Author: S.L.Bhayana
HIGH COURT OF DELHI AT NEW DELHI
WP (C) No. 11766/2005 & CM No. 11157/2005
Date of Decision:- September 25, 2008
Rajeshwer Kumar Gupta ... Petitioner
Through: Petitioner in person.
Versus
Lt. Governor of NCT of Delhi & Ors. ... Respondents
Through: Ms. Sujata Kashyap, Adv.
CORAM:
HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local paper may be
allowed to see the judgment? Yes
2. To be referred to the reporter or not?Yes
3. Whether the judgment should be referred in
the Digest? Yes
S. L. BHAYANA, J.
This Writ Petition has been filed under Articles 226/227 of
the Constitution of India for issuance of appropriate writ and to set
aside/quash Notification No.F.47/01/Coop/Policy/05/24, dated
06.04.2005 being unconstitutional, ultra vires and void ab initio in view
of Notification No.37/01/Coop/Act/Policy/RCS/10, dated 24.3.2005,
vide which Delhi Co-operative Societies Act, 2003 (for short „DCS Act,
2003‟ ) came into force.
2. Adumbrated in brief, the case of the Petitioner is that
Respondent No.2/ the Registrar Cooperative Societies had issued an
illegal Notification No.F.47/01/Coop/Policy/05/24, dated 06.04.2005
which is not only unconstitutional but ultra vires as per Section 137 of
DCS Act 2003. The main contention of the Petitioner is that the DCS Act,
1972 was repealed under the provisions of Section 141 of DCS Act,
2003, and consequently the DCS Act, 2003 came into force with effect
from 01.04.2005. However, the Notification, dated 06.04.2005, was
issued under Sub-section (1) of Section 97 of DCS Act, 1972 on
06.04.2005, on which date the said Act had already ceased to exist.
Section 97 (1) was repealed by Section 141 of the DCS Act, 2003.
3. Adverting to the Petitioner‟s case, learned counsel for the
Respondents submitted that amendment in Rule 24 (2) of DCS Rules
1973 is valid and as per law because DCS Rules 1973 were still in force
as Rules under the DCS Act 2003 had not been framed. The
Respondents have initiated the amendment in the Rule 24 (2) when
DCS Act 1972 was in force. Again that Notification
No.F.47/01/Coop./Policy/05/24 issued on 06.04.2005 has a protection
of Section 141 of DCS Act 2003 because the competent authority had
approved the amendment when the DCS Act 1972 was in force but the
Notification could be issued when the DCS Act 2003 came into force.
Notification dated 06.04.2005 has been issued with the intention to
prevent taking over of the co-operative Societies by builder mafia and
making the procedure of enrolment of membership more transparent.
Thus, the same is not illegal, arbitrary and not liable to be quashed.
4. Again in reply, learned counsel appearing for the
Respondents, has pointed out that a further Notification
No.RCS/Policy/07/628 was issued on 31.07.2008 which reads as under:
"In exercise of the powers conferred by section 137 of Delhi
Co-operative Societies Act, 2003 (Delhi Act 3 of 2004), the
Lt. Governor of the National Capital Territory of Delhi,
hereby, makes the following amendments in the Delhi Co-
operative Societies Rules, 2007 namely:-
1. Short Title and Commencement (1) These rules may be
called the Delhi Co-operative Societies (Amendment) Rules,
2008.
(2) These rules shall come into force with effect from the
date of their publication in the official Gazette.
2. Amendment of rule 19- In the Delhi Co-operative
Societies Rules, 2007, in rule 19, after sub-rule (2), the
following sub-rules shall be inserted, namely:-
"(3) The Registrar, on an application from a co-operative
society on behalf of member or members enrolled up to the
2nd July, 2007 by such co-operative society in contravention
of sub-rule (2) of rule 24 of the Delhi Co-operative Societies
Rules, 1973 (repealed vide notification No. F 37 (Policy)/
RCS/ 142 dated 19th October, 2007), may regularize the
membership of such member or members.
(4) Notwithstanding anything contained in sub-rules (3), any
regularization so made by the Registrar shall not affect the
liability, criminal or civil, of any such member or any other
person under any law, for the time being in force.
By order and in the name of the
Lt. Governor of the National Capital
Territory of Delhi
Sd/-
( J.K. DADOO)
Secretary ( Co-operation)"
5. So far as the issues raised in the Writ Petition are
concerned, the same in our considered opinion have become
infructuous after examining on the touchstone of the above-mentioned
Notification, dated 31.07.2008, which nullifies the previous Notification.
Moreover, it is illuminatingly highlighted by the above-mentioned
Notification that DCS Rules, 1973 remained in force till 19.10.2007 and,
therefore, the Respondents have issued Notification
No.F/47/01/Coop./Policy/05/24, under DCS Rules, 1973, which, in our
opinion, was justified on their part. After the issuance of this further
Notification, clarifying the above said position, nothing survives in this
Writ Petition.
6. The Writ Petition is, accordingly, dismissed as the dispute
does not survive.
S.L. BHAYANA, J.
VIKRAMAJIT SEN, J.
September 25, 2008
ss
