Delhi High Court
Sheetal Vihar Cooperative Group ... vs The Registrar Cooperative ... on 5 April, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 05.04.2019
+ W.P.(C) 3495/2019
SHEETAL VIHAR COOPERATIVE GROUP HOUSING
SOCIETY LTD. AND ORS. ..... Petitioners
Through: Mr.Rakesh Munjal, Sr. Adv. with
Mr.Raghav Jha & Mr.Pranshu Garg, Adv.
versus
THE REGISTRAR COOPERATIVE SOCIETIES AND ORS.
..... Respondents
Through: Mr.Anjum Javed, ASC with
Mr.Devendra Kumar & Mr.Faran
Ahmed, Advs. for R-1 to 3.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE REKHA PALLI
VIPIN SANGHI, J (ORAL)
C.M. No.16032/2019
Exemption allowed, subject to all just exceptions.
W.P.(C) 3495/2019 & C.M. No.16031/2019
1. The petitioners have preferred the present writ petition to
assail the order dated 25.02.2019 passed by the Assistant Registrar
of Cooperative Societies, conveying the decision of the Registrar of
Cooperative Societies that the election of the President and
Secretary of the petitioner no.1/society, i.e., Sheetal Vihar
Cooperative Group Housing Society Ltd. held on 11.02.2018, was
in violation of Rule 22(1) read with Rule 53 of the Delhi
Cooperative Societies Rules, 2007 and, thus, was illegal. The order
dated 25.02.2019 in its entirety reads as follows:-
"To
The President/Secretary,
Sheetal CGHS Ltd.,
Plot No.10, Sector-23,
Dwarka, New Delhi-110077.
Sub: Illegal election of President and Secretary
who were the joint members with their names
stand second as per the list of members.
This office is in receipt of a representation
from some of the members of Sheetal Vihar CGHS
Ltd. alleging that despite pointing out the
disqualification of candidate namely Sh.Chander
Mohan Gupta and Sh.Sanjeev Nayyar, being
second name in joint membership, the R.O had
allowed them to contest the election and also
declared them elected on 11.02.2018 as President
and Secretary, respectively, of the society,
violating the section 25(b) and 35(6) of DCS Act
2003.
In view of the above, it is to inform that the
matter was submitted before the higher authorities
and it has been decided that the election of
President and Secretary of the society held on
11.02.2018 was conducted in violation of Rule
22(1) read with Rule 53 of DCS Rules, 2007 and
thus is declared illegal. The society is also
directed to conduct the fresh election of the post of
President and Secretary for democratic setup,
under intimation to this office.
(K.P. SUHAG)
Asstt. Registrar (Sec-7)"
2. The submission of Mr.Munjal, learned senior counsel for the
petitioner, firstly, is that the said order has been passed illegally
and without any jurisdiction. He submits that if any member of the
petitioner no.1/society was aggrieved by the election of petitioner
nos.2 and 3 as the President and Secretary of the said society
respectively, it was for them to challenge the same in an election
petition under Section 70 of the Delhi Cooperative Societies Act.
He further submits that the reply submitted by the petitioners on
31.07.2018 to the notice dated 02.05.2018, has not been considered
by the Registrar of Cooperative Societies while passing the
impugned decision.
3. Mr.Munjal has further contended that even though the
petitioner nos.2 & 3 were not primary members of the petitioner
no.1/society, they could be authorized by the primary members to
vote and attend meetings on their behalf. In support of his aforesaid
contention, Mr.Munjal sought to place reliance on the first proviso
to Rule 22(1), which entitles a person whose name stands first in
the share certificate to authorise others to vote and attend meetings
on his behalf. In this regard, he also places reliance on a decision of
the Division Bench of this Court in Krishna Devi & Anr. vs.
Rajasthan Cooperative Group Housing Society Ltd. & Ors.,
W.P.(C) No.5849/2014 decided on 01.10.2014.
4. We have heard the submissions of Mr.Munjal and
considered the same. We have also perused the impugned order and
the other documents placed on record as also the legal position
emerging from the relevant provisions of the Delhi Cooperative
Societies Act, 2003 (hereinafter referred to as "Act") and the Rules.
As would be seen, the impugned order itself observes that the
appointment of the petitioner nos.2 and 3 was in violation of
Section 25(b) and 35(6) of the Act. Section 25 of the Act insofar as
it is relevant, reads as follows:-
"25. Votes of members
Every member of a co-operative society shall have
one vote in the affairs of the co-operative society:
PROVIDED that -
(a) xxx xxx xxx
(b) A nominal or associate or joint member shall not
have the right of vote
(c) xxx xxx xxx."
5. The admitted position is that the petitioner nos.2 and 3 are
joint members and they are not primary members of the petitioner
no.1/society. Thus, on the face of it, the petitioner nos.2 and 3 did
not have the right to vote at any election of the petitioner
no.1/society. It is well settled that a member who has no right to
vote, cannot also offer his candidature to any executive post in an
organisation.
6. Sub rule (1) of Rule 22 permits admission of joint members
along with the primary member, subject to certain conditions. The
said rule reads as follows:-
"22. Procedure for admission of joint member,
minor and person of unsound mind and
inheriting the share or interest of deceased
member
(1) A co-operative society may admit joint
member provided the proposed joint member
make a declaration in writing that the person
whose name stands first in the share certificate
shall have the right to vote and all other rights
shall be enjoyed jointly and severally and
liabilities shall be borne jointly and severally by
them as provided under the Act, the rules and
the bye-laws:
PROVIDED that in case of inability of the
person whose name stands first in share
certificate, he/she can authorize the other to
vote and attend the meeting on his behalf.
PROVIDED FURTHER that in case of co-
operative group housing/house building society,
the joint membership shall be restricted to only
person in first degree blood relationship.
(2) In accordance with the procedure laid down
in the bye-laws and these rules for admission of
any member, a co-operative society may admit
minor and person of unsound mind inheriting
share or interest of deceased member as its
member through their legal representative or
guardian respectively. The members so admitted
will enjoy such rights and liabilities as are laid
down in the bye-laws of the co-operative society
that are consistent with the Act and rules."
(emphasis supplied)
7. Thus, as per the first proviso to Rule 22(1), the right to vote
conferred upon joint members is only in case of „inability‟ of the
person whose name stands first in the share certificate to act, and
not otherwise. The „inability‟ spoken of in the first proviso to Rule
22(1) of the Rules is a legal inability. It does not cover voluntary
renunciation or transfer of the right of the primary member of his
right to vote as a member of a society. The same relates to inability
which the primary members may suffer from on account of
minority, insanity or other legal disability. This is clear not only
from the heading of the Rule, but also from sub-rule (2). In fact,
Sub-Rule (1) clearly provides that the joint member has to furnish a
declaration that the person whose name stands first in the share
certificate shall have the right to vote. If the first proviso to Rule
22(1) were to be interpreted broadly - to mean that „inability‟
includes a conscious decision of the primary member to voluntarily
give up or cede his/her right to vote in favour of the joint member,
it would mean that any member would be able to authorise the joint
member to vote and attend meetings on his/her behalf. But such an
interpretation would clearly be contrary to proviso (b) of Section 25
of the Act taken note of hereinabove. There is no gain saying that
rules are subordinate to the provisions contained in the Act, and
cannot survive if they are in contravention of the statutory
provisions. Thus, the only way in which the first proviso to Rule
22(1) can be saved from being declared ultra vires, the Act, is to
read it meaningfully, i.e., to limit the scope of the phrase „inability
of the person‟ to mean legal „inability‟ or „disability‟. Thus, it
clearly emerges that the petitioner nos.2 and 3 were not entitled to
vote, much less, contest in the elections for the post of President
and Secretary in the petitioner no.1/society.
8. Reliance placed by Mr.Munjal on our decision in Krishna
Devi (supra) is misplaced. The facts of that case are materially
different. Moreover, proviso (b) to Section 25 of the Act was
neither referred to, nor considered in the said decision since its
application did not arise for consideration.
9. The submission of Mr.Munjal that the impugned order is
illegal, since the same has been issued without authority by the
Registrar of Cooperative Societies, does not motivate us to invoke
our discretionary jurisdiction under Article 226 of the Constitution
of India, since it is clear to us that no injustice has been done to the
petitioners with the passing of the impugned order. The petitioners
cannot run away from the fact that the petitioner nos.2 and 3 were
not entitled to contest the elections, and be elected as President and
Secretary of the petitioner no.1/society. This Court is not obliged to
exercise its discretionary jurisdiction under Article 226 of the
Constitution of India in every case, even if there is some
irregularity pointed out by the petitioner. We are, therefore, not
inclined to interfere with the impugned order.
10. The writ petition is dismissed in the above terms along with
the pending application.
(VIPIN SANGHI)
JUDGE
(REKHA PALLI)
JUDGE
APRIL 05, 2019
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