Mangal Cghs Ltd And Ors vs Registrar Cooperative Societies ...
2009 Latest Caselaw 4985 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment delivered on: 04.12.2009

+ W.P.(C) No. 13593/2009

MANGAL CGHS LTD AND ORS                                         ..... Petitioner

                     - versus -

REGISTRAR COOPERATIVE SOCIETIES AND ORS ..... Respondent

Advocates who appeared in this case:

For the Petitioner   :     Mr. Rajiv Vig, Advocate

For the Respondent   :     Mr. V.K. Tandon, Adv. for R-1 & 2
                           Counsel for R-3 & 4.

CORAM:-
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE VEENA BIRBAL

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in Digest?

BADAR DURREZ AHMED, J (ORAL)

1. The petitioner No.1 is Mangal Cooperative Group Housing Society

Ltd, through its Secretary and the petitioners 2 to 12 are all members of the

Managing Committee of the petitioner No.1 Society. Elections to the

Managing Committee were conducted on 13.07.2008 but the results were

declared on 31.01.2009.

2. The petitioners and, particularly, petitioners 2 to 12 were all elected.

Respondents 3 and 4 had initially filed an appeal under Section 112 of the

Delhi Cooperative Societies Act, 2003 before the Delhi Cooperative

Tribunal, challenging the rejection of their nomination papers and

acceptance of nomination papers of petitioners 2 to 12 and others. In other

words, the respondents 3 and 4 were aggrieved by the election of the

petitioners 2 to 12 as also by the fact that they had not been permitted to

contest in the said election.

3. In the meanwhile, a Division Bench of this Court in the case of

Narender Kumar Jain v. Govt. of NCT of Delhi : (2008) 10 A.D. (Delhi)

105 had concluded that in an election dispute with regard to a Cooperative

Group Housing Society, the remedy was not by way of an appeal under

Section 112 of the said Act, but the remedy lay in approaching the Registrar

under Section 70 for a reference to arbitration. Consequently, the appeal

filed by the respondents 3 and 4 before the Delhi Cooperative Tribunal was

withdrawn and a claim petition was filed under Section 70 of the said Act

before the Registrar of Cooperative Societies. In that claim petition, not all

the elected members, namely, petitioners 2 to 12 were individually made

parties and it was only the President, Secretary and the Committee Members

of the petitioner No.1 Society (as a group), who were made parties. To be

clear, the petitioners 2 to 12 herein were not made parties individually, even

though their individual elections were also the subject matter of challenge in

the claim petition. No notices were sent individually to the elected members

by the RCS and the notice was only sent to the petitioner No.1 Society.

4. It was contended on behalf of the petitioner No. 1 Society, before the

Deputy Registrar, who was hearing the claim petition under Section 70 of

the said Act that the claim petition filed by the respondents 3 and 4 was not

maintainable as the same had not individually impleaded any of the elected

members as parties, whose elections were challenged, particularly, when

they would be effected by the outcome of any decision taken by the

Registrar under Section 70.

5. This plea was rejected by the Deputy Registrar by virtue of the

impugned order dated 16.06.2009 wherein he concluded as under:-

".....The claim has been filed on certain procedural issues alleging non-adherence to the provisions under Act and Rules by the Returning Officer and not against the individual. The society, which is represented by the Managing Committee members, can very well take care the interest of the member elected defending the rules and procedure adopted while conducting the election and no specific or individual person is being challenged to be displaced. The petition since been filed within one month of the declaration of result is not time barred."

6. In view of the aforesaid finding, the Deputy Registrar, held that the

dispute was one which was covered under Section 70 of the said Act and,

therefore, he referred the same for adjudication under Section 71 of the said

Act. We are informed that the Arbitrator (Mr. Satbir Silas Bedi) has already

fixed a date for hearing.

7. The petitioners are aggrieved by the said order dated 16.06.2009.

Their specific grievance is that petitioners 2 to 12 were not made parties to

the claim petition filed by the respondent 3 and 4, even though their

individual elections were being challenged on separate grounds. The learned

counsel for the petitioners also contends that they had a right to appear

before the Deputy Registrar in the proceedings under Section 70 of the said

Act, particularly, in view of Rule 84 (5) of the Delhi Cooperative Societies

Rules, 2007. The learned counsel for the petitioners also informs this Court

that they have challenged the impugned order dated 16.06.2009 before the

Delhi Cooperative Tribunal by way of an appeal under Section 112, but, as

the Tribunal is not functioning at present, they were constrained to file this

writ petition inasmuch as the Arbitration proceedings are sought to be

proceeded with.

8. We have heard the learned counsel for the petitioners as well as the

learned counsel appearing for respondents 3 and 4. Since the Tribunal is not

functioning, we feel that the petitioners do not have any equally efficacious

remedy in the facts and circumstances of this case and, therefore, we are

taking up this writ petition for disposal. The counsel for the parties have

also consented that the matter be disposed of at the admission stage itself.

9. We may observe straightway that the findings of the Deputy

Registrar, as extracted above, are not in consonance with the law. When the

elections of members of the Managing Committee are under challenge on

individual grounds, then each of them should be made a party. They are not

only proper parties but, are necessary parties. Each of the respondents in the

proceedings under Section 70 of the said Act, also have a right to be heard

although that right is circumscribed by Rule 84 (5) to a maximum of two

hearings. In the present case, we find that petitioners 2 to 12 were never

made parties nor were any notices issued to them and that the impugned

order dated 16.06.2009 has been passed without hearing them. In these

circumstances, the said order is liable to be set aside on this ground alone.

We do so accordingly.

10. The learned counsel for the respondents 3 and 4 submits that he may

be permitted to amend the claim petition by adding all the petitioners 2 to 12

as individual respondents and that the matter be continued with the

Arbitrator.

11. However, in view of the fact that petitioners 2 to 12 have not been

given any opportunity of being heard at the time of hearing of the claim

petition under Section 70 of the said Act, we feel that the matter be

remanded to the Deputy Registrar for a fresh consideration after the

respondents 3 and 4 add the petitioners 2 to 12 as respondents in the said

claim petition and after an opportunity of hearing is granted to the said

newly added respondents. The parties shall appear before the Deputy

Registrar on 21.12.2009 at 3.00 P.M. The learned counsel for the petitioners

states that no adjournment would be taken. No further notice would be

necessary to the parties. However, it is made clear that the respondents 3

and 4 shall amend the memo of parties in the claim petition, now pending

before the Deputy Registrar, within one week. The Registrar shall thereupon

pass appropriate orders in accordance with law within thirty days.

Dasti.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J DECEMBER 04, 2009 srb