Kamla Aggarwal & Others vs Registrar, Cooperative ...
2011 Latest Caselaw 3051 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 15th June, 2011

+                         WP(C) NO.4333/2011

KAMLA AGGARWAL & OTHERS                 ..... Petitioners
              Through: Dr. G.S. Chouhan & Mr. Pradeep
                       Kumar, Advocates

                                    Versus

REGISTRAR, COOPERATIVE SOCIETIES & ORS ..... Respondents
                Through: Ms. Shobhana Takiar, Advocate for
                         R-1.
                         Mr.R.K. Gupta, Advocate for R-2.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE G.P. MITTAL
1.     Whether reporters of Local papers may                    No
       be allowed to see the judgment?

2.     To be referred to the reporter or not?             No

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


RAJIV SAHAI ENDLAW, J.

1. The five Petitioners claiming to be the members of the Respondent

no.2 Vikas Co-operative Group Housing Society Limited have filed this

petition claiming the following reliefs:

"It is therefore prayed that:-

      a.    Record of the case may be summoned;

      b.    filing of the certified copies of the Annexures may kindly be

            dispensed with;

      c.    to issue an appropriate writ or order/direction whereby to set

aside the resolution dated 10.04.2011 for being illegal, arbitrary,

unconstitutional, unjust, unreasonable, fabricated, manipulated

and against the provisions of Delhi Cooperative Societies Act,

Rules and by-laws;

d. to issue an appropriate writ or order/direction to set aside the

agenda notice of the elections dated 08.06.2011 issued by the

Returning Officer for being illegal, arbitrary, unconstitutional,

unjust, unreasonable, manipulated and against the provisions of

Delhi Cooperative Societies Act, Rules and by-laws;

e. to issue appropriate writ or order/direction to Respondent No.1, to

appoint an Administrator for running day-to-day affairs of the

society and to hold free and fair elections of the society after

preparing the list of the members in fair and transparent manner

and after settling the claims of membership of bona fide

purchasers of the flats in the society;

f. pass any other appropriate writ or order/direction as this Hon'ble

Court may deem fit and proper in the facts and circumstances of

the case.

PRAYER FOR INTERIM RELIEF:-

It is respectfully prayed that this Hon'ble Court may be pleased to

direct the Respondent No.1 and 2 not to take further steps to hold

the elections and maintain status quo till the final disposal of the

present Writ Petition."

2. The Resolution dated 10 th April, 2011 which is sought to be set aside

has not been placed before this Court. It is however the case of the

Petitioners that the said Resolution of the Managing Committee of the

Society is for holding elections for the constitution of the new Managing

Committee of the Society and appoints the Respondent No.3 Shri H.C.

Kaushik as the Returning Officer for holding the said election, scheduled on

26th June, 2011.

3. The challenge to the Resolution dated 10 th April, 2011 of the

Managing Committee of the Society is on the ground that as on 10 th April,

2011 there was no Managing Committee of the Society in existence; it is

contended that the Managing Committee comprised of 7 Members including

the Petitioners No. 1 and 3 and one Shri M.L. Gupta (who is neither the

Petitioner nor has been included as the Respondent) and all three of whom

had resigned in December 2009, May 2010 and August 2010 respectively.

4. It is thus contended that with the said resignations, only four members

were left in the Managing Committee while the statutory requirement is of a

minimum 5 members. Reference is made to Suresh Chand v. Delhi Co-

operative Tribunal 167(2010) DLT 590, in the last paragraph of which

judgment the Division Bench observed that upon the number of members of

the Managing Committee dropping below the statutory requirement, the

Registrar, Co-operative Societies is required to take action in accordance

with law to see that the affairs of the Society are conducted on a day-to-day

basis and that fresh elections are conducted as early as possible.

5. I may however notice that the Petitioners have not filed before this

Court any document whatsoever to show that the Managing Committee at

any point of time comprised of the Petitioners No. 1 & 3 and Shri M.L.

Gupta aforesaid or that the said persons had on the dates alleged resigned

from the Managing Committee.

6. It is also pleaded though not argued, i) that of the total of 110 flats of

the Society, 24 flats are still awaiting draw by DDA and hence as per

Section 35 of the Delhi Co-operative Societies Act, 2003 r/w Rule 53 and

Schedule II Clause 1(ii) of the Delhi Co-operative Societies Rules 2007,

RCS is empowered to appoint Returning Officer for conduct of the election

at the request of the Managing Committee of the Society; ii) that the

statutory audit of the Society has not been conducted and AGM of the

Society not held for the last two years and owing whereto the Returning

Officer is required to seek prior permission of RCS before initiating the

process of election and which permission has also not been sought by the

Respondent No.3 appointed as the Returning Officer; iii) Errors are also

pleaded in the list of members of the Society eligible to vote; iv) that the

Respondent No.3 appointed as the Returning Officer is not holding the

election at the premises of the Society but elsewhere; and, v) that 22

members of the Society (all of whom are not parties to the writ petition)

have on 30th May, 2011 called upon the RCS for calling a Special General

Body Meeting of the Society for removal of the present Managing

Committee but no action has been taken thereon.

7. At the outset, question was raised as to the maintainability of the

present petition. It is felt that the Petitioners have alternative remedy

available to them and the matter entails disputed questions of fact best left to

be adjudicated in the alternative fora available.

8. The counsel for the Respondent No.2 Society appearing on advance

notice has also referred to Narender Kumar Jain v. Govt. of NCT of Delhi

2008 X AD (Delhi) 105 where the Division Bench of this Court held that the

matters relating to elections stand covered by Section 70 of the Act aforesaid

and disputes of this category must be decided through arbitration. It was

further held that the disputes relating, inter alia, to holding or failure to hold

elections, term of office of the elected members and eligibility or

disqualification for standing for elections would all be covered by arbitration

provided for under Section 70. The Division Bench further observed that

disputes pertaining to elections invariably raise disputed questions of fact

which cannot conveniently be decided in appellate proceedings or writ

jurisdiction and must be decided through arbitration, as per Section 70 and

against the decision or Award published thereon, an appeal would lie under

Section 112.

9. The counsel for the Respondent No.2 Society has in this regard also

invited attention to, a) Shri Sant Sadguru Janardan Swami (Moingiri

Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra

AIR 2001 SCC 3982 where the Supreme Court in relation to the

Maharashtra Co-operative Societies Act held that Writ Petition to quash

election schedule on ground of illegality in preparation of electoral roll is not

maintainable since such challenge can be raised in Election Petition; and to,

b) P. Subba Rao v. Andhra Association, Delhi (Regd.) 2008 (102) DRJ

201 where another Division Bench of this Court observed that Courts should

not interfere once the election process has started and specially where

disputed questions of fact are required to be adjudicated.

10. The counsel for the Petitioner has however placed strong reliance on

Suresh Chand aforesaid to contend that the Division Bench of this Court in

that case had entertained the Writ Petition.

11. It is not as if the Division Bench in Suresh Chand did not notice the

earlier dicta in Narender Kumar Jain (supra). The Division Bench in

Suresh Chand also held that when such Writ Petitions are filed, High Courts

relegate the parties to pursue their alternative remedies but nevertheless

chose to interfere in that case for the reason of the option of relegating the

parties in that case to arbitration being not efficacious since the term of the

Managing Committee constitution whereof was challenged was also to come

to an end. However, that is not the position here. The Petitioners herein

have an alternative efficacious remedy available to them.

12. The Writ Petition is therefore dismissed as not maintainable with

liberty to the Petitioners to avail alternative remedies available to them. No

order as to costs.

Dasti under signature of court master.

RAJIV SAHAI ENDLAW (JUDGE)

G.P. MITTAL (JUDGE) June 15, 2011 M..