Dinesh Kumar & Anr. vs Delhi Cooperative Group Housing ...
2011 Latest Caselaw 369 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI



%                                              Date of decision: 21.01.2011



+          WP(C) No. 416 of 2011 and CM Nos.839-840/2011


DINESH KUMAR & ANR.                                              ...PETITIONERS


                    Through:              Mr.S.N.Khanna, Advocate


                                         Versus


DELHI COOPERATIVE GROUP HOUSING
SOCIETY LTD. & ANR.                                              ...RESPONDENTS


                    Through:             Mr.Vishwendra Verma, Advocate
                                         for R-1 along with Mr.Vidur Gopal
                                         Bajaj, Ex-Vice President of R-
                                         1/Society.

                                         Mr.V.K.Tandon, Advocate for R-2 to
                                         R-4.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE RAJIV SHAKDHER

1.      Whether the Reporters of local papers
        may be allowed to see the judgment?                               No

2.      To be referred to Reporter or not?                                No

3.      Whether the judgment should be                                    No
        reported in the Digest?

SANJAY KISHAN KAUL, J. (ORAL)

CM No.840/2011

Allowed subject to just exceptions.

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WP (C) No.416/2011

1. Rule DB.

2. Learned counsel for the respondents accept notice.

3. At request of learned counsel for the parties, the matter is

taken up for final disposal.

4. The elections to R-1/Society were held on 06.12.2009.

These elections were challenged by petitioner No.2 under

Section 70 of the Delhi Cooperative Societies Act, 2003

('the said Act' for short) which resulted in an Award being

passed on 09.07.2010. In terms of the Award, it was held

that the Returning Officer did not follow the procedure

laid down under the Delhi Cooperative Societies Rules,

2007 for conduct of elections of the Managing Committee

of R-1/Society and thereby vitiated the election

proceedings. The competent authority was directed to

take necessary action.

5. The RCS thereafter proceeded to appoint an Administrator

on 06.09.2010. However, R-1 challenged the Award

before the Delhi Cooperative Tribunal inter alia pleading

that the Award was ambiguous. R-1 also failed in the

appeal which was dismissed on 03.12.2010 and it was

held that the Award had the capability and impact of

setting aside the elections itself. A further challenge was

laid by R-1 before this Court by filing Civil Writ Petition

No.8297/2010, but after some hearing that writ petition

was withdrawn on 13.12.2010. The petitioners on the

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same date itself filed a review petition before the Delhi

Cooperative Tribunal i.e.13.12.2010 which was dismissed

for non prosecution on 15.12.2010.

6. The result of the aforesaid proceedings is that the Award

became final and the elections held on 06.12.2009 stood

set aside and thus fresh elections were required to be

held through the process of appointment of an

Administrator by the RCS. Thus the RCS issued a fresh

letter dated 16.12.2010 for appointment of an

Administrator which was in continuation of the earlier

letter dated 06.09.2010. In pursuance to this letter, the

Administrator/R-4 issued a letter dated 22.12.2010 to the

erstwhile Managing Committee of R-1 informing that the

Administrator would be taking charge on 23.12.2010. This

letter of the Administrator dated 22.12.2010 was

challenged by R-1/Society through Mr.Vidur Gopal Bajaj as

Vice President, whose membership itself is stated to be

in doubt, by filing a revision petition in the name of the

Society before the Financial Commissioner. It appears

that while certain defects in the revision petition were

directed to be removed by the Financial Commissioner in

terms of the order dated 23.12.2010 he simultaneously

directed issuance of notice and stay of the operation of

the order dated 22.12.2010. The matter was adjourned to

04.01.2011 for hearing on admission.

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7. We are informed that the Financial Commissioner did not

hold Court on that date as he was on leave and the

proceedings were adjourned to 18.01.2011. Learned

counsel for the petitioners, on instructions, states that

even on 18.01.2011 the Financial Commissioner was on

leave and the proceedings now stand adjourned to

03.02.2011.

8. The present writ petition under Article 226 of the

Constitution of India has thus been filed challenging the

proceedings before the Financial Commissioner and for

other reliefs.

9. On hearing learned counsel for the parties, we find from a

perusal of the revision petition filed on behalf of R-1 that

the only ground taken to challenge the action of the

Administrator to take over charge of R-1/Society is stated

to be the action of the Ex-Managing Committee on

15.12.2010 deciding to conduct the elections to the R-

1/Society. We find that the challenge to the Administrator

taking over charge of R-1/Society is misconceived and

mischievous.

10. The Award of the Arbitrator has attained finality and

the Tribunal has clarified the effect of the Award. It is

thus not in doubt that the elections to the earlier

Managing Committee held on 06.12.2009 had been

declared as invalid and thus there was no Managing

Committee in existence. That being the position, no

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decision could have been taken on 15.12.2010, after all

these proceedings were over, by the Managing

Committee to hold elections itself. The elections could

have been held only by the Administrator appointed by

the RCS and that is the step RCS has taken. It is to thwart

the Administrator, from taking over charge of R-1/Society

and thereafter to take necessary steps for holding of

elections by appointment of a Returning Officer, that the

Ex-Managing Committee of R-1/Society has taken the

dubious route of filling the revision petition before the

Financial Commissioner to challenge the taking over of

charge of R-1/Society by the Administrator. The order of

the Financial Commissioner dated 23.12.2010, in our

considered view, shows complete non-application of mind

as he has not even cared to consider as to how he could

have granted a stay in view of the orders passed by the

Tribunal and the High Court earlier, the effect of which is

that the revision petition filed on behalf of the R-1/Society

could not be said to be maintainable. The members of

the erstwhile Managing Committee of R-1/Society are like

any other members of the cooperative society and thus

enjoy the rights only in that behalf.

11. We thus consider this a fit case to exercise

jurisdiction under Article 226 of the Constitution of India

to dismiss the revision petition itself filed before the

Financial Commissioner and to vacate the order passed

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on 23.12.2010 staying the letter of the Administrator to

take over charge of R-1/Society communicated vide letter

dated 22.12.2010 and direct the Administrator to

forthwith take over charge of R-1/Society. The sequitur to

this would be that the election notice purportedly issued

by the erstwhile Managing Committee of R-1/Society

dated 10.01.2011 also stands recalled as also the notice

for the Special General Body Meeting dated 15.01.2011

for holding the meeting on 23.01.2011. We make it clear

that all steps for holding the elections expeditiously will

be taken by the Administrator and the RCS will also take

necessary steps to make the request for appointment of

the Returning Officer as soon as the Administrator has

done the necessary preparatory work for holding the

elections.

12. Insofar as the other prayers made in the writ

petition to initiate enquiry into the functioning of R-

1/Society, to hold a special audit or to disqualify existing

members of the Managing Committee of R-1/Society are

concerned, it is for the RCS to take necessary action in

accordance with law.

13. The writ petition is accordingly allowed with costs in

view of the conduct of the Ex-Managing Committee of R-

1/Society and thus the costs quantified at Rs.10,000/-

will be paid by the Ex-President of R-1/Society Sh.Rishi

Dev equally to the petitioners which he can recover

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proportionately from other members of the Ex-Managing

Committee who took the decision to hold elections.

CM No.839/2011

No further directions are called for on this application.

The application stands disposed of.

Dasti.

SANJAY KISHAN KAUL, J.

JANUARY 21, 2011                                         RAJIV SHAKDHER, J.
dm

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