Delhi High Court
Wazirpur Industrial Pollution ... vs Lt. Governer, Nct Of Delhi & Ors on 27 September, 2011
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 27th September, 2011
+ W.P.(C) 7815/2010
WAZIRPUR INDUSTRIAL POLLUTION
CONTROL (CETP), SOCIETY ..... Petitioner
Through: Mr. S.K. Bhattacharya & Mr. Niraj
Bobby Poonam, Advs.
Versus
LT. GOVERNER, NCT OF DELHI & ORS ..... Respondents
Through: Mohd. Noorullah, Adv. for R-1&2.
Mrs. Avnish Ahlawat & Ms. Urvashi
Malhotra, Advs. for R-3 to 5.
Mr. S.S. Jauhar, Adv. for applicant in
CM No.21580/2010.
Mr. Saran Suri & Mr. Gunjan Kumar,
Advs. for applicant in CM
No.11803/2011.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Not Necessary
be allowed to see the judgment?
2. To be referred to the reporter or not? Not Necessary
3. Whether the judgment should be reported Not Necessary
in the Digest?
W.P.(C) No.7815/2010 Page 1 of 14
RAJIV SAHAI ENDLAW, J.
1. The writ petition has been filed seeking declaration that the actions of
the respondent No.3 Commissioner of Industries and the respondent No.4
Additional Commissioner of Industries of not allowing elections to take
place of the petitioner Society is illegal, arbitrary and contrary to provisions
of law, and for restraining the respondents from placing any fetters on the
smooth conduct of elections of the petitioner Society.
2. Notice of the petition was issued. This Court in order dated
25.05.2011 noticed one of the issues concerning election being as to the list
of eligible voters and issued certain directions in that regard. On
11.08.2011, the counsel for the respondent No.5 Dy. Commissioner of
Industries informed that upon verification in terms of the earlier order dated
25.05.2011, it was found that only eight members had deposited the
subscription upto 31.03.2011 and that as per the Bye-Laws of the petitioner
Society only those who had deposited the subscription upto 31.03.2011 were
eligible to vote in the election to be held thereafter. It was also stated that
the election was to take place for eleven posts and thus the members eligible
to vote were not even sufficient to fill up the eleven posts to which elections
were to be held.
3. CM No.21580/2010 has been filed by one Jai Kumar Bansal and
Mahavir Jain claiming to be occupants of Wazirpur Industrial Area and
entitled to vote in the election of office bearers of petitioner Society, for
impleadment. CM No.11803/2011 has been filed by one Sh. Amarnath
Gupta claiming to be the President of the Wazirpur Audyogic Sangh also for
impleadment.
4. The counsel for the petitioner, the counsel for the respondents and the
counsels for the applicants have been heard.
5. At the outset, it has been enquired as to how the writ petition qua the
elections to the post of a Society registered under the Societies Registration
Act, 1860 is maintainable.
6. The counsel for the petitioner has contended that the respondents are
illegally interfering with the election process of the petitioner Society and
which they are not entitled to. The counsels for the respondents and the
counsel for the applicants have invited attention to the Delhi Common
Effluent Treatment Plants Act, 2000 and contended that the petitioner
Society has been incorporated in terms thereof.
7. The said Act was enacted to provide for recovery of dues as arrears of
land revenue in respect of capital and recurring costs of common effluent
treatment plants setup in the Industrial Estates in the National Capital
Territory of Delhi and matters connected therewith. Section 3 thereof
provides that an industrial estate either by itself or along with one or more
industrial estates in Delhi may constitute a Common Effluent Treatment
Plant (CETP) Society to be registered under the Societies Registration Act,
1860 and duly approved by the appropriate authority to be constituted under
the said Act for the purposes of performing such functions including setting
up and operating a CETP for the units in such industrial estate or estates, as
may be entrusted to such society.
8. It is not in dispute that the petitioner Society is approved by the
appropriate authority stated to be respondent No.3 Commissioner of
Industries, for the Wazipur Industrial Estate.
9. During the hearing, it has also emerged that the petitioner Society has
been incorporated only in the year 2009 and no elections have been held till
now and the elections are to be held now for the first time.
10. In the circumstances, it is deemed expedient to entertain this writ
petition.
11. The following points of controversy as to the holding of elections
have arisen:
A. (i) First is the dispute as to who all are the members of the
Society. While the counsel for the persons presently in
management of the petitioner Society (and who, the
applicants contend are perpetuating their illegal
management of the Society and are not interested in
holding of elections) contends that only such of the
persons, who have applied for becoming a member of the
petitioner society and who have paid their subscription
are entitled to be members of the Society and to vote in
the ensuing election, the counsel for the respondents and
the counsels for the applicants invite attention to Section
3(2) of the Act, as per which every "occupier" shall be a
member of that CETP Society. Occupier is defined in
Section 2(10) of the Act, in relation to any establishment,
factory or premises, as a person who has control over the
affairs of the establishment, factory or the premises.
They thus contend that irrespective of whether
subscription has been paid and whether the name exists
on the roll of the Society or not, if a person is "occupier"
of the industrial estate, he would be entitled to vote in the
ensuing election.
(ii) In this regard, it has emerged that though earlier survey
had found 1803 industrial units in the industrial estate,
the current survey has found only 953 units in existence;
of the said 953 units also, only 149 according to the
petitioner and 155 according to the respondent No.3
Commissioner of Industries have become members of the
Society. It is further the case of the petitioners that
another 162 industrial units, though have deposited their
dues upto 31.03.2011 but have not completed the
formalities of being a member of the Society.
(iii) The question to be adjudicated thus is, whether a person
merely for the reason of being an "occupier" becomes a
member of the Society and becomes entitled to vote or, is
required to formally apply for membership and to pay the
subscription.
(iv) The Rules and Regulations of the petitioner Society
though restrict the membership to persons inter alia
having industrial unit in the Wazirpur Industrial Estate,
require a member to pay the annual subscription fee
regularly without any fail and further require a occupier
to make an application for so becoming a member.
(v) I am of the opinion that it is necessary to have a formal
roll of members of the Society and the membership of the
Society cannot be left vague, dependent upon the
occupation of the industrial estate. The occupiers of the
various industrial units of the industrial estate may
change from time to time. However, they are required to
apply for and enroll themselves as a member of the
Society.
(vi) The counsels have informed that in another proceeding in
the Supreme Court, it has been directed that failure to
become a member can lead to an action by the
Commissioner of Industries.
(vii) Thus it is held that making of a formal application for
becoming a member and payment of subscription fee is
necessary to be a member of the Society and to be on the
rolls of the Society and only such of the occupiers of
industrial estate who have made an application to become
a member and have paid the subscription, in accordance
with Rules and Regulations of Society, are entitled to
vote in elections to the post of office bearers of the
Society.
B. (1) The next controversy is as to the capital cost and the
operation and maintenance charges for the CETP, with
the counsel for the petitioner contending that to be able
to become a member of the Society the occupiers are
required to also clear the arrears of capital cost and
operation & maintenance charges (O&M) and the
counsels for the applicants controverting the same.
(ii) There are allegations and counter allegations as to the
amount of capital cost of CETP and operation and
maintenance charges of CETP with the counsel for the
petitioner contending that the occupiers are not paying
there share and the counsel for the applicants alleging
misappropriation and excessive demands by persons
presently in management of petitioner Society.
(iii) I am of the opinion that since the first elections are to be
held, insistence on payment of arrears of capital cost &
O&M charges would unnecessarily restrict the electoral
college which is to elect the elected body of the Society.
Therefore it is deemed expedient to allow all the
occupiers who apply for enrolment as members and pay
the subscription fee to participate in the first elections to
be held, with it being left open for decision whether in
the subsequent elections, members who may have paid
their subscription money but not paid the capital costs or
the O&M charges are entitled to participate in the
election or not.
C (i) Apprehensions have also been expressed as to the
competence and fairness of those presently in
management of the petitioner Society to hold the
elections of the Society. The counsels for the applicants
have invited attention to the Minutes of the Meeting held
on 10.09.2010 in the Office of the Commissioner of
Industries where a two member Committee consisting of
Sh. Prem Prakash, Assistant Commissioner of Industries
and Mr. Ram Vilas Gupta one of the occupiers was
constituted to take steps for conducting the elections.
(ii) The counsel for the persons presently in management of
the petitioner Society has contended that under the Rules
and Regulations of petitioner Society, the Governing
Body of the Society is to hold the elections and there is
no reason for interfering therewith.
(iii) However, the Governing Body presently in management
is not an elected Governing Body. I find this Court to
have in Delhi Jan Sudhar Samiti Vs. Ramesh Chand
Gupta MANU/DE/7614/2007 (DB), Ram Krishan
Bhalla Vs. Registrar of Co-operative Societies
MANU/DE/1333/2000 (DB) to have in similar situations
appointed a retired Judge as Observer to the elections.
To allay any apprehensions and doubts and to ensure free
and fair elections, it is deemed expedient to prescribe a
procedure therefor.
12. Accordingly, the petition is disposed of with the following directions:
A. Mr. Raj Pal Gupta stated to be present Secretary of the Society,
is directed to within 10 days from today submit to the
Commissioner of Industries the list of members of the Society
together with proof of payment by the said members of their
subscription up to 31.03.2011.
B. The Commissioner of Industries to give opportunity to other
occupiers of the Industrial Estate desirous of becoming member
of petitioner Society, to so become member and time schedule
therefore be drawn up.
C. The Commissioner of Industries to verify whether the persons
already admitted as members and the applicants for
membership, are in fact occupiers of the said industrial estate
and device a procedure for submission of proof and scrutiny
thereof.
D. The said list of members be displayed on or before 20.12.2011
and thereafter the election to the fourteen posts of the Society
shall be held.
E. Justice S.N. Dhingra (Retd.) is appointed as the Observer for
scrutiny of the members and for the election. The Directorate
of Industries to liase with Justice Dhingra on all the aforesaid
aspects. The fee of Justice Dhingra is fixed at `1,00,000/-
besides out of pocket and administrative / secretarial expenses
to be borne by the petitioner Society. Mr. Raj Pal Gupta to
ensure payment within one week of today.
F. The present Governing Body to deliver charge of the affairs of
the petitioner Society to the newly elected Governing Body.
13. It is clarified that the inclusion as member or allowing the
"occupiers" to vote as members would not prevent the recovery
of the capital goods and O&M charges or other coercive action
against the occupiers.
14. The petition is disposed of; no order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
SEPTEMBER 27, 2011
'gsr'
