Managing Committee Amit ... vs Govt. Of Nct Of Delhi And Ors
2012 Latest Caselaw 4860 Del

3
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   Date of Decision: 21.08.2012

%                       W.P.(C) 5048/2012

      MANAGING COMMITTEE AMIT COOPERATIVE GROUP
      HOUSING SOCIETY AND ANR                       ..... Petitioner
                    Through:  Mr. D.R. Roy, petitioner no.2 in
                              person
               versus

      GOVT. OF NCT OF DELHI AND ORS               ..... Respondent
                     Through:   Ms. Ferida Satarawala Chopra for
                                R-1&2

      CORAM:
      HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
      HON'BLE MR. JUSTICE VIPIN SANGHI


VIPIN SANGHI, J. (Oral)

C.M. No.10349/2012 (Exemption)

Exemption allowed, subject to all just exceptions.

W.P.(C) 5048/2012

1. The present writ petition under Article 226 of the Constitution

of India has been preferred on behalf of the managing committee Amit

Cooperative Group Housing Society Limited by Sh. D.R. Roy, who

claims to be the President of the said managing committee. Sh. D.R.

Roy is petitioner no.2 in this petition, who has appeared in person and

has argued the case.

2. The petitioner in this writ petition has made various prayers

including the setting aside of the orders dated 10.12.2010 passed by

the Financial Commissioner in Case No.391/2010-CA, being revision

proceedings under Section 116 of the Delhi Cooperative Societies Act,

2003 (the Act) and the order dated 15.11.2011 passed by the Delhi

Cooperative Tribunal in Appeal No.216/2009 and 64/2011.

3. We have heard petitioner no.2 in person who has not been

able to state, despite repeated opportunities, as to what is his

grievance, and what are the grounds for assailing the impugned

orders. We even advised petitioner no.2 to engage a counsel looking

to his inability to argue his case. But he has chosen not to do so, and

has preferred to proceed on his own.

4. On a reading of the petition and from whatever we could

make out from the petitioners submission, it appears that the elections

to the managing committee of the Amit Cooperative Group Housing

Society Limited (Society) were held on 25.01.2009. The term of office

of the office bearers elected to the said managing committee was

three years. It appears that the requisite number of members (i.e. 22

out of 49 members), which constituted more than 1/5th of the total

membership of the society, demanded the holding of a Special General

Body Meeting (SGBM) to express no confidence in the managing

committee headed by petitioner No.2. However, the management of

the said society did not oblige by calling SGBM. Consequently, the

Registrar of Cooperative Societies (RCS), upon being approached,

issued an order on 12.11.2009 for holding the SGBM.

5. Sh. S.S. Mandal was appointed as the observer on behalf of

the RCS. However, the SGBM was not convened and thereafter

another order was passed on 25.02.2010 by the RCS directing the

committee to convene the SGBM on 07.03.2010. Sh. Shailesh Gupta

was appointed to represent the RCS in the said meeting. Eventually,

the SGBM was held on 07.03.2010 and a no confidence motion was

passed against the managing committee in the said meeting. The

SGBM also elected five members as members of the ad-hoc

committee, which was approved by the RCS vide letter dated

29.03.2010.

6. The petitioners then preferred W.P.(C.) No.4482/2010 before

this Court to assail the calling of the SGBM and the outcome thereof.

However, it appears that this petition was eventually rejected on

11.11.2010, leaving it open to the petitioners to pursue the alternate

efficacious statutory remedy of revision available to them.

7. Consequently, it appears that the petitioners preferred the

aforesaid revision petition under Section 116 of the Act in Case

No.391/10-CA, which too has been dismissed. The Financial

Commissioner held that the petitioners did not impugn the direction

issued by the RCS on 12.11.2009, as well as the subsequent order

dated 25.02.2010, directing the calling of the SGBM of the society. In

fact, the then managing committee obeyed the said orders and called

for the SGBM on 07.03.2010. Having complied with the said orders, it

was not open for the petitioners to assail the decision of the RCS to call

for the SGBM, only because the no confidence motion against the

managing committee was successfully passed in the said meeting.

8. The submission of the petitioner Mr. Roy is that no agenda for

the SGBM of 07.03.2010 was circulated and that the no confidence

motion against the committee could not be considered in the said

meeting, without a specific agenda to that effect.

9. We find from the impugned order itself that the SGBM was

called for by the 22 out of 49 members precisely for the reason that

they desired to pass a no confidence motion against the then existing

managing committee. Therefore, it could not be said that the members

of the managing committee or the members of the society did not

have notice of the item to be discussed in the SGBM, as the precise

reason for calling the said meeting was to consider the issue whether

the general body members had confidence in the managing

committee, or not. We, therefore, find no infirmity in the order passed

by the Financial Commissioner in the aforesaid revision proceedings.

10. It appears the petitioners also sought to raise the issue of the

eligibility of the newly enrolled members before the Financial

Commissioner. The learned Financial Commissioner held that the said

issue did not lie within his revisional jurisdiction. It appears the

petitioners then preferred a claim petition under Section 70 of the Act

before the Joint Registrar (Arbitration). The petitioners sought

initiation of arbitration to assail the membership of the newly enrolled

members. This petition was filed by the petitioners claiming to

represent the managing committee of the Society through its President

Sh. D.R.Roy. The locus standi of Sh. D.R. Roy to file the said petition

was assailed on the ground that he could not claim himself to be the

President of the managing committee of the Society, as the said

managing committee had been dislodged in the SGBM held on

07.03.2010.

11. The Joint Registrar (Arbitration) vide order dated 08.04.2011

upheld this preliminary objection to the maintainability of the petition

under Section 70 of the Act at the behest of the petitioners, and

dismissed the same as not being maintainable on 07.04.2011. The

appeals preferred by the petitioners, once again in the name of the

managing committee of the Society through its President Sh. D.R. Roy

have been dismissed as not maintainable vide order dated 15.11.2011

passed by the DCT, holding that Sh. Roy has no locus standi to

represent the managing committee of the Society and, therefore, even

the said appeals were incompetent.

12. The submission of the petitioner no.2 Sh. Roy is that since the

removal of the erstwhile managing committee by the SGBM itself was

illegal, he continued to remain the President of the said managing

committee and was, therefore, competent to file the arbitration

petition under Section 70 of the Act as well as the appeals before the

DCT.

13. We do not find any merit in this submission. Firstly, the

managing committee of which the petitioner no.2 was the President

was dislodged by the special general body in its meeting held on

07.03.2010 in the presence of the observer of the RCS. The petitioners

did not assail the orders directing the calling of the said SGBM. It is

only when they found that they have been dislodged by the no

confidence motion in the said SGBM, they had sought to assail the

orders of the RCS directing the holding of the meeting. Moreover, the

agenda for the SGBM was only one, i.e. to consider whether the

general body has confidence in the managing committee. Therefore, it

cannot be said that there was non compliance of any statutory

provision of the Act in the calling of the SGBM or in passing the

resolution expressing no confidence in the then existing managing

committee.

14. Secondly, the term of the managing committee, of which the

petitioner no.2 claimed himself to be the President was, at the most,

three years, which, in any event, expired on 24.01.2012.

Consequently, the petitioner no.2 has no locus standi to file the

present petition by claiming himself to represent the managing

committee as its President.

15. We find no merit in this petition and accordingly dismiss the

same.

C.M. No.10350/2012 (for stay)

In view of the aforesaid, no orders are called for in this application.

Application stands disposed of.

VIPIN SANGHI, J

SANJAY KISHAN KAUL, J

AUGUST 21, 2012 sr