Delhi High Court
Jai Kishan Khanna Since Deceased ... vs Shantnu Appt. Coop Group Housing ... on 22 May, 2014
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 22.05.2014
+ WP(C) 2900/2014 and CM 6015/2014
JAI KISHAN KHANNA SINCE DECEASED
THROUGH LR RAJEEV KHANNA ... Petitioner
versus
SHANTNU APPT. COOP GROUP HOUSING SOCIETY
REGISTRATION NO. 1111 ... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Kamal Kapoor
For the Respondent : Mr Saurabh Pandey
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. This writ petition is directed against the order dated 11.03.2014
passed by the Delhi Cooperative Tribunal in Appeal No. 42/2014/DCT
which had been preferred by the petitioner and which has been dismissed by
the said Tribunal in limine on the ground that the appeal is not maintainable.
2. The petitioner claims to be a member of Shantnu Apartments CGHS
Limited. A letter dated 19.08.2013 had been sent by the said society to the
Registrar of Cooperative Societies on the subject of expulsion of the
petitioner under Section 86 of the Delhi Cooperative Societies Act, 2003
(hereinafter referred to as „the said Act‟) and Rule 99 of the Delhi
Cooperative Societies Rules, 2007 (hereinafter referred to as „the said
Rules‟) on account of non-furnishing of residential proof prior to three years
of applying for the membership of the society. By virtue of the said letter
the Registrar of Cooperative Societies was requested to accord approval
under Section 86 of the said Act and Rule 99 of the said Rules.
3. Section 86 of the said Act reads as under:-
"86. Expulsion of a member.
(1) Notwithstanding anything contained in this Act and the rules
framed thereunder, the committee of a co-operative housing
society may, by a resolution, expel a member on any one or more
of the following grounds, namely:-
(a) if he has been a persistent defaulter in respect of
any dues of the co-operative housing society; or
(b) if he has willfully deceived the co-operative
housing society by making any false statement or
submitting any false document to obtain the
membership of such co-operative society; or
(c) if he has brought disrepute to the co-operative
society or has done any other act detrimental to the
interest and proper working of the co-operative
society:
Provided that no such resolution shall be passed unless the member
concerned has been given an opportunity of being heard after
service of three registered notices confronting the member with the
grounds for his proposed expulsion:
Provided further that no member shall be expelled unless a
resolution to that effect is passed by not less than three-fourths of
the members of the committee present and entitled to vote at the
meeting and no resolution for expulsion shall be valid unless
approved by the Registrar.
(2) After the resolution for expulsion is passed as above by the
committee, the resolution shall be referred to the Registrar for
approval within a period of thirty days.
(3) On the receipt of the resolution for expulsion, the Registrar
shall take cognizance of such resolution within thirty days and pass
a final order either approving the expulsion or rejecting the
proposal for expulsion within a period of one hundred and eighty
days and if the matter is not decided by the Registrar within the
aforesaid period, the expulsion of such a member shall be deemed
to have been approved:
Provided that the Registrar, before approving the resolution, shall
hear the parties concerned in the manner prescribed and shall have
power to summon and enforce attendance of witnesses including
the parties interested or any of them and compel them to give
evidence on oath, affirmation or affidavit and to compel production
of documents by the same means and as far as possible in the same
manner as provided in the case of a civil court under the Code of
Civil Procedure, 1908 (5 of 1908) and the order under this section
so passed by the Registrar, shall be final with a right for appeal
before the Tribunal.
(4) Any party aggrieved by the order of the Registrar or deemed
approval of expulsion, as the case may be, under sub-section (3)
may, within sixty days from the date of such order, appeal to the
Tribunal."
(underlining added)
4. From the above provision, it is evident that the letter dated 19.08.2013
was pursuant to a resolution and, therefore, it is an action taken under
Section 86(2), whereby after a resolution for expulsion is passed by the
Committee, the resolution is required to be referred to the Registrar of
Cooperative Societies for approval within a period of 30 days.
5. Sub-Section (3) of Section 86 stipulates that on the receipt of the
resolution for expulsion, the Registrar shall take cognizance of the said
resolution within 30 days and pass a final order either approving the
expulsion or rejecting the proposal for expulsion within a period of 180 days.
The said provision further stipulates that if the matter is not decided by the
Registrar within the aforesaid period, the expulsion of such a member shall
be deemed to have been approved. The period of 180 days from the issuance
of the letter dated 19.08.2013 expired on 15.02.2014 and immediately
thereafter, on 28.02.2014, the petitioner filed the appeal under Section 86(4)
read with Section 112 of the said Act. Sub-Section (4) of Section 86 clearly
entitles any party aggrieved by the order of the Registrar or "deemed
approval" of expulsion, as the case may, to file an appeal within 60 days
from the date of such order. The starting point of limitation of the deemed
approval of expulsion would have to be reckoned from the date on which the
period of 180 days expired. In the present case, the said period expired on
15.02.2014
6. Unfortunately, for the petitioner, the Tribunal has rejected his appeal
as being premature. We do not see as to how the appeal of the petitioner is
premature inasmuch as the period of 180 days, on the facts narrated by the
petitioner, expired on 15.02.2014. On that date, the deemed expulsion of the
petitioner had fructified and, therefore, his right of appeal had been
crystallized.
7. As a result, the conclusion of the Tribunal is erroneous. The
impugned order is set aside. The appeal before the Tribunal is restored. The
same may be listed before the Tribunal, in the first instance, on 02.06.2014.
The writ petition is allowed as above. There shall be no order as to costs.
BADAR DURREZ AHMED, J
SIDDHARTH MRIDUL, J
MAY 22, 2014
SR
