Uttarakhand High Court
Unknown vs State Of Uttarakhand Through ... on 5 May, 2021
Reserved
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 1100 of 2015
Committee of Management
Doon Valley Officers' Co-operative Housing Society Ltd.
Vasant Vihar, Dehradun
Through its Secretary Col. A.P. Kumeri (Retd.)
S/o Sri Gopal Datt Kumeri,
Secretary, Doon Valley Officers' Co-operative Housing Society Ltd.
Vasant Vihar, Dehradun
......... Petitioner
Vs.
1. State of Uttarakhand through Secretary
Co-operative Department
Civil Secretariat, Subhash Road
Dehradun
2. Appellate Authority/Secretary
Co-operative Societies Department
Secretariat, Dehradun
3. Sri Vijay Kumar Dhaundiyal
S/o not known
Presently posted as Registrar
Co-operative Societies
Uttarakhand, Dehradun
4. Sri Ram Gopal S/o Sri Bhagwan Dass
270/5, Thapar Nagar
Meerut, Uttar Pradesh
.......Respondents
Present:
Mr. Siddhartha Singh, Advocate for the petitioner.
Mr. Pooran Singh Bisht, Addl. C.S.C. for the State.
Mr. A.S. Rawat, Senior Advocate assisted by Mr. Yogesh Pacholia, Advocate for
respondent no. 4.
Writ Petition (M/S) No. 1101 of 2015
Committee of Management
Doon Valley Officers' Co-operative Housing Society Ltd.
Vasant Vihar, Dehradun
Through its Secretary Col. A.P. Kumeri (Retd.)
S/o Sri Gopal Datt Kumeri,
Secretary, Doon Valley Officers' Co-operative Housing Society Ltd.
Vasant Vihar, Dehradun
......... Petitioner
2
Vs.
1. State of Uttarakhand through Secretary
Co-operative Department
Civil Secretariat, Subhash Road
Dehradun
2. Appellate Authority/Secretary
Co-operative Societies Department
Secretariat, Dehradun
3. Sri Vijay Kumar Dhaundiyal
S/o not known
Presently posted as Registrar
Co-operative Societies
Uttarakhand, Dehradun
4. Sushila Sharma, W/o Sri Ram Saran,
T-15, Yamuna Colony, Dehradun
5. Sri Girish Chand S/o Late Sri Bishambhar Dutt
R/o 855/5-AWHO, Indira Colony
Dehradun
.......Respondents
Present:
Mr. Siddhartha Singh, Advocate for the petitioner.
Mr. Pooran Singh Bisht, Addl. C.S.C. for the State.
Mr. A.S. Rawat, Senior Advocate assisted by Mr. Yogesh Pacholia, Advocate for
respondent no. 5.
Writ Petition (M/S) No. 1102 of 2015
Committee of Management
Doon Valley Officers' Co-operative Housing Society Ltd.
Vasant Vihar, Dehradun
Through its Secretary Col. A.P. Kumeri (Retd.)
S/o Sri Gopal Datt Kumeri,
Secretary, Doon Valley Officers' Co-operative Housing Society Ltd.
Vasant Vihar, Dehradun
......... Petitioner
Vs.
1. State of Uttarakhand through Secretary
Co-operative Department
Civil Secretariat, Subhash Road
Dehradun
2. Appellate Authority/Secretary
Co-operative Societies Department
Secretariat, Dehradun
3. Sri Vijay Kumar Dhaundiyal
S/o not known
3
Presently posted as Registrar
Co-operative Societies
Uttarakhand, Dehradun
4. Sri Babu Ram S/o Sri Shambhu Dayal
R/o 9/30, Suryodaya Colony
Rana Pratap Marg, Lucknow
Uttar Pradesh
.......Respondents
Present:
Mr. Siddhartha Singh, Advocate for the petitioner.
Mr. Pooran Singh Bisht, Addl. C.S.C. for the State.
Mr. A.S. Rawat, Senior Advocate assisted by Mr. Yogesh Pacholia, Advocate for
respondent no. 4.
JUDGMENT
Per: Ravindra Maithani, J.
Since common question of law and facts are involved in
all these three writ petitions, they are being decided by this common
judgment.
FACTS
WRIT PETITION (M/S) NO. 1100 OF 2015
2. This petition is preferred for quashing the order dated
18.04.2015 passed under Section 98 (2) (a) of the Uttar Pradesh Co-
operative Societies Act, 1965 (for short, "the Act"), passed in Appeal
No. 07 of 2013, Doon Valley Officers' Cooperative Housing Society,
Dehradun Vs. Registrar, Cooperative Societies and others (for short,
"the appeal"). By the impugned order the appellate authority
(respondent no. 3 herein) upheld the order dated 28.11.2002 passed by
the Registrar, Cooperative Societies (conveyed vide Letter No.
693/Vidhi//Ni.Sa.Sa/2002 dated 28th November, 2002). The Registrar,
by his order dated 28.11.2002, had rejected the objections of Doon
Valley Officers' Cooperative Housing Society Limited, Dehradun (for
short, "the Society") against extension of time for raising construction
by the respondent no. 4 Ram Gopal.
3. The facts necessary for disposal of the instant petition
have a long history. It is the third round of litigation. Shortly stated, the
facts are as under:
(i) The Society is constituted under the Act with the
objectives of providing land and other materials for
construction of houses to its members, etc. A plot
bearing No. 117, Phase-I of the Society (hereinafter
referred to as "the plot") was allocated to R.S.
Chug, who transferred it to D.P. Nangia on
28.09.1984. D.P. Nangia did not construct the
house on time and sought extension, but he did not
construct his house for a decade. He was issued
various notices by the Society. D.P. Nangia
executed a power of attorney (POA) in favour of
Major (retd.) Naresh Gupta on 07.01.1991. On the
strength of the POA, Major (retd.) Naresh Gupta
executed a transfer lease deed in favour of the
respondent no. 4 Ram Gopal on 23.07.2001. For
this transfer, permission of the Society was never
sought. In fact Sri D.P. Nangia had died on
13.05.1998, almost 3 years prior to execution of
transfer of lease deed.
(ii) On 03.11.1993, the Committee of Management of
the Society (for short, "the petitioner") was not
functional and an Administrator was appointed.
The Administrator, on 03.11.1993, admitted the
respondent no. 4 Ram Gopal as a member of the
Society. Before that, on 18.07.1993 the General
Body of the society had resoled that no new
member would be enrolled and plots shall not be
allotted till the further decision of the General
Body.
(iii) The petitioner on 24.08.2002 by a resolution on
point no. 4 cancelled the membership of the
respondent no. 4. This resolution of the committee
of management was quashed under Section 128 of
the Act by the Registrar on 28.11.2002 (conveyed
by Letter No. 691/Vidhi/Ni.Sa.Sa. dated 28th
November, 2002).
(iv) Simultaneously, on 25.09.2002, the petitioner by a
resolution on point no. 3 considering that inspite of
numerous notices issued by the Society and in
violation of Bye-law 50, the respondent no. 4 Ram
Gopal had not undertaken construction work of the
residential house, resumed the plot.
(v) It appears that in the meanwhile, respondent no. 4
Ram Gopal sought extension of time for raising
construction on the plot from the Registrar, which
was extended till 31.12.2002. This extension of
time was objected to by the Society on the
following grounds:
(a) Since Ram Gopal was inducted as a
Member in defiance to interim order
passed by Allahabad High Court dated
dated 24.08.2002, the membership of
Ram Gopal had already been cancelled;
and
(b) In the record of the Society, the plot is not
entered in the name of Ram Gopal; the
plot was allotted to D.P. Nangia, who had
died and nobody should be permitted to
illegally occupy the plot.
(vi) On these objections, parties were heard and the
Registrar held that in so far as cancellation of
membership of the respondent no. 4 Ram Gopal is
concerned, that resolution no. 4 dated 24.08.2002
had already been set aside by the Registrar on
28.11.2002, which was conveyed vide Letter No.
691/Vidhi/Ni.Sa.Sa./2002 dated 28th November,
2002). It was also observed that there is no reason
to disbelieve the transfer deed executed in favour of
Ram Gopal. Accordingly, the Registrar by its order
dated 28.11.2002 (conveyed by Letter No.
693/Vidhi/Ni.Sa.Sa./2002) dated 28th November,
2002) directed the Society to enter the name of
respondent no. 4 Ram Gopal in the records of the
Society and Ram Gopal be permitted to raise
construction on the plot as per sanctioned map.
This order dated 28.11.2002 was challenged in
appeal under Section 98 of the Act, which was
initially not admitted for hearing on 21.03.2003 on
the ground that it was time barred and the
resolution was not enclosed with the appeal.
(vii) This order dated 21.03.2003 was challenged by the
petitioner in Writ Petition (M/S) No. 820 of 2003,
Committee of Management vs. The Secretary and
others (for short, "the first petition"), which was
decided on 22.06.2006 with the directions to the
petitioner to cure the defects in order to get the
appeal heard in accordance with law.
(viii) Pursuant to order dated 22.06.2006 passed in the
first petition, the appeal was admitted but it was
rejected by the Secretary, Cooperative Department,
as time barred on 29.06.2007. This order dated
29.06.2007 was challenged in Writ Petition (M/S)
No. 1870 of 2007, Committee of Management vs.
The Secretary, Sahkari Vibhag and others (for
short, "the second petition"), which was allowed on
01.08.2013. Delay was condoned and the authority
concerned was directed to decide the appeal on
merits. The appeal was thereafter heard.
(ix) During the course of pendency of the appeal, the
petitioner unsuccessfully moved an application to
the appellate authority that since the person holding
the charge of the Registrar was also holding the
charge of the Secretary, Cooperative Societies,
State of Uttarakhand, he should refrain from
deciding the appeal. The appeal was decided on
18.04.2015 and the order dated 28.11.2002 passed
by the Registrar was upheld. Aggrieved by it, the
petitioner challenged the impugned order.
(x) In this petition, on behalf of the respondent nos. 1,
2 and 3, counter affidavit has been filed and, inter
alia, it has been objected that the resumption of the
plot was not legal and not as per the set procedure;
a property duly discharged in favour of a competent
person by a person, who is fully entitled for this
through a proper deed cannot be resumed under the
provisions of the Bye-laws of the society, unless
and until, it is ordered by a Court having
jurisdiction for this. According to the respondent
nos. 1, 2 & 3, the impugned order has been passed
in accordance with law, wherein all the technical
issues raised by the petitioner have already been
dealt with.
(xi) Respondent no. 4 also filed counter affidavit.
According to it, the resolution of the General Body
of the society dated 18.07.1993 imposing a ban on
enrollment of new member is not in accordance
with law; this resolution was never brought to the
notice of the Registrar or the appellate authority;
the order dated 27.11.1992 of the Allahabad High
Court was not in force on 03.11.1993. It is stated
that the impugned order dated 18.04.2015 is
absolutely justified and it suffers from no legal
anomaly calling for an interference of this Court
under Article 226 of the Constitution of India.
WRIT PETITION (M/S) NO. 1101 OF 2015
4. Challenge is made in the instant petition to the order dated
18.04.2015 passed under Section 98(2)(a) of the Act in Appeal No. 05
of 2013, Doon Valley Cooperative Housing Society Limited,
Dehradun vs. Registrar, Cooperative Societies and others.
5. By the impugned order, the appellate authority
(respondent no. 3 herein) upheld the order dated 27.11.2002 passed by
the Registrar, Cooperative Societies (conveyed vide Letter No.
689/Vidhi/Ni.Sa.Sa./2002 dated 27th November, 2002). The Registrar,
in his order dated 27.11.2002 had annulled a resolution dated
14.09.2002 on point no. 2 by the Society, by which Plot No. 3/1
allotted to the respondent no. 4 Sushila Verma, was resumed by the
society.
6. The facts necessary to be noted are as hereunder:-
(i) The Society had allotted the plot no. 3/1to
D.P. Gupta. D.P. Gupta transferred the plot
to the respondent no. 4 Smt. Sushila Sharma
on 01.12.1992 and it was done with the prior
permission of the Society. Smt. Sushila
Sharma did not raise construction on the plot
within three years as per Bye-law 50. She
was given various notices, warning, but, it
had no effect.
(ii) The petitioner on resolution on point no. 2 in
its meeting held on 14.09.2002 resumed the
plot. It was conveyed to the respondent no. 4
Smt. Sushila Sharma.
(iii) This resolution dated 14.09.2002 was
annulled by the Registrar on 27.11.2002. It
was challenged in appeal under Section 98 of
the Act, which was initially not admitted on
21.03.2003 on the ground that it was time
barred and the resolution was not enclosed
with the appeal.
(iv) This order dated 21.03.2003 was challenged
in the first petition, which was decided on
22.06.2006 with the direction to the
petitioner to cure the defects in order to get
the appeal heard in accordance with law.
(v) Pursuant to the order dated 22.06.2006
passed in the first petition, the appeal was
admitted, but it was again rejected on
29.06.2007 on the ground of being time
barred. This order dated 29.06.2007 was
challenged along with second petition, which
was allowed on 01.08.2003. The delay was
condoned and the authority concerned was
directed to decide the appeal on merits. The
appeal was thereafter heard.
(vi) During the pendency of the appeal, it was
revealed that the Registrar was also holding
the charge of the Secretary, Cooperative
Societies, State of Uttarakhand, therefore, the
petitioner unsuccessfully moved an
application that the Secretary, Cooperative
Societies should refrain from deciding the
appeal. But, the appeal was decided on
18.04.2015 and the order dated 27.11.2002
passed by the Registrar was upheld.
Aggrieved by it, the petitioner challenged the
impugned order.
(vii) Respondent nos. 1, 2 & 3 have filed counter
affidavit in this petition. The objections as
raised in Writ Petition (M/S) No. 1100 of
2015 have been raised in this petition also by
them.
(viii) Respondent no. 3, who passed the impugned
order, also filed separate counter affidavit
supporting the impugned order. (In fact
counter affidavit on behalf of respondent nos.
1, 2 and 3 has also been filed by the
respondent no. 3.)
(ix) Respondent no. 5 is Girish Chand. In fact, it
is the case of the petitioner that 10 years after
resumption of the plot, on 19.11.2012, the
respondent no. 5 Girish Chand Maikota
wrote to the society that he has executed a
registered indenture (written agreement) with
respondent no. 4 on 25.06.2002 for transfer
of lease of the plot and, therefore, Girish
Chand Maikota has become the lease holder
of the plot.
(x) Girish Chand Maikota has filed a counter
affidavit. He has, inter alia, stated that the
first transfer deed between the society and
the first member was absolute transfer and is
duly governed by the statute; first transfer
deed did not have any stipulation that the
construction by the member has to be
undertaken within the stipulated time; there
is no mention/implied clause in the transfer
deed with regard to relationship between the
society and the lease holder. It is also stated
by the respondent no. 5 that there is no law
that right to property as enshrined under
Article 300-A of the Constitution of India
could be ceased or cancelled just by a
resolution passed by a society; the Bye-laws
are not laws and everyone is not supposed to
know that.
(xi) Respondent no. 4 Smt. Sushila Sharma was
served through publication and it was so
recorded by this Court on 15.12.2015, but
she has not been represented.
WRIT PETITION (M/S) NO. 1102 OF 2015
7. Challenge in this petition is to order dated 18.04.2015
passed under Section 98(2)(a) of the Act passed in Appeal No. 04 of
2013, Doon Valley Officers' Cooperative Housing Society Ltd.,
Dehradun v. Registrar, Cooperative Societies and others. By the
impugned order, the appellate authority (respondent no. 3 herein)
upheld the order dated 28.11.2002 passed by the Registrar,
Cooperative Societies (conveyed vide Letter No.
692/Vidhi/Ni.Sa.Sa./2002 dated 28th November, 2002). The Registrar,
by his order dated 28.11.2002 had annulled the resolution no. 4 dated
24.08.2002 of the Society, by which name of the respondent no. 4 was
removed from membership.
8. The facts necessary to be noted for disposal of the
petition, briefly stated, are as under:
(i) Respondent no. 4 Babu Ram applied for
membership of the Society on 25.04.1991, but he was not
admitted as a member.
(ii) Subsequently, respondent no. 4 was
appointed as Housing Commissioner and the Registrar,
Cooperative Societies and the earlier Administrator was
replaced by R.B.S. Parihar, a junior employee of the
Housing Department, on 12.10.1993. On the date of
appointment of R.B.S. Parihar, there were 76 members in
the waiting list and all plots had already been allotted and
no new members had been enrolled for nearly five years,
as there was no need of new members. Not only this, the
Allahabad High Court had restrained the Society from
enrolling new members and from allotting plot to them;
The Secretary of the Society, in his affidavit dated
06.01.1993, had given an assurance on behalf of the
Society that no new members would be enrolled.
According to the petitioner, on 18.07.1993, the General
Body of the Society unanimously passed a resolution,
which forbade the enrollment of new members and
stopped allotment of plot until further decision of the
General Body.
(iii) It is the case of the petitioner that the
Administrator, on 03.11.1992 illegally enrolled five new
members, including the respondent no. 4 Babu Ram. The
New Administrator, on 05.02.1994, cancelled the
allotment of plot no. 182/1 allotted to one Justice Gurtu
and allotted the same to Sri Krishna, ignoring the claims
of 76 members on the waiting list for seven years. The
Administrator then directed Sri Krishna to deposit the
money and to execute the lease deed within fifteen days,
but, in fact, no information was sent to Sri Krishna.
Subsequently, the Administrator cancelled the plot
allotted to Sri Krishna on 07.03.1994 and allotted the
same to respondent no. 4.
(iv) In view of the illegality committed by the
Administrator, when the first elected Committee came
into being, the Society after following the due process of
law gave notice to the respondent no. 4 and removed his
membership on 24.08.2002 and also cancelled the
allotment of plot to him. This resolution dated 24.08.2002
of the petitioner was challenged before the Registrar. The
Registrar on 28.11.2002 (conveyed vide Letter No.
692/Vidhi.Ni.Sa.Sa./2002 dated 28.11.2002), allowed the
appeal and annulled the resolution of the Society, without
affording an opportunity of hearing to the petitioner. The
Registrar also granted one year time to the respondent no.
4 to complete the construction.
(v) This order dated 28.11.2002 passed by the
Registrar was challenged by the Society under Section 98
of the Act, which was initially not admitted by the
Secretary, Cooperative Societies on 21.03.2003 on the
ground of limitation as also that resolution was not
enclosed along with the appeal. This order dated
21.03.2003 was challenged in first petition by the
petitioner, which was allowed on 22.06.2006 with the
direction to the petitioner to cure the defects in order to
get the appeal heard in accordance with law. The
petitioner again pursued their appeal, which was admitted,
but again dismissed by the Secretary on 29.06.2007.
(vi) This order dated 29.06.2007 was challenged
along with the second petition, which was allowed on
01.08.2013; delay was condoned and the authority
concerned was directed to decide the appeal on merits.
The appeal was thereafter heard.
(vii) During the pendency of the appeal, the
petitioner unsuccessfully moved an application to the
appellate authority that since the same person is holding
the charge of the Registrar as well as the Secretary,
Cooperative Societies, State of Uttarakhand, he should not
decide the appeal. It is the case of the petitioner that
despite that the appeal was heard and decided on
18.04.2015. By the impugned order, the order dated
28.11.2002 passed by the Registrar was upheld.
Aggrieved by it, the petitioner challenged the impugned
order.
(viii) Respondent nos. 1, 2 & 3 filed counter
affidavit. According to it, the membership of the society is
the open membership; the cancellation of membership and
allotment of plot no. 182/1 of respondent no. 4 was not
legal and also not as per set procedure of law; the
impugned order is in accordance with law and does not
warrant any interference. Respondent no. 3 has filed
counter affidavit on behalf of the respondent nos. 1, 2 &
3, but interestingly the respondent no. 3 also filed separate
counter affidavit (in fact, in all the three petitions, he has
done so). In his counter affidavit, the respondent no. 3 has
supported the impugned order.
(ix) Respondent no. 4 also filed counter affidavit.
According to him, his application for membership was
rightly allowed by the Administrator; on 03.11.1993,
there was no stay order of the Allahabad High Court; the
decision of the General Body dated 18.07.1993 was not in
accordance with law; it was never brought to the notice of
the Registrar or the appellate authority. The impugned
order is as per law.
ARGUMENTS
9. In all these three writ petitions, similar arguments have
been advanced with reference to the facts of each petition.
10. The Court now proceeds to discuss the case keeping in
view the grounds, which have initially been taken in WPMS No. 1100
of 2015, along with the facts of that writ petition.
ON BEHALF OF THE PETITIONER
11. Learned counsel for the petitioner would submit that the
impugned order is illegal and unreasonable, which does not qualify the
test of a valid order, hence it deserves to be quashed. Learned counsel
raised the following points in his arguments:-
(i) The transfer of lease deed, which was made by Major
(retd.) Naresh Gupta on 21.07.2001 in favour of Ram
Gopal is void.
(ii) This transfer is made at the strength of POA dated
07.01.1991, allegedly executed by D.P. Nangia in favour
of Major (retd.) Naresh Gupta, but the POA had already
lost its validity on the death of D.P. Nangia on
13.05.1998.
(iii) After 13.05.1998, the POA could not have been used for
making transaction. Respondent no. 4 Ram Gopal did not
get any right on the basis of alleged transfer of lease deed
dated 21.07.2001.
(iv) No construction was made on the plot within three years
of allotment, hence resumption of plot was in accordance
with Bye-laws, which is valid.
(v) Bye-laws are binding on the parties and the alleged
transfer dated 23.07.2001 has been done in violation of
the Bye-laws 50 to 55. Resultantly the resumption of plot
by the committee of management is valid.
(vi) If statute requires a thing to be done in a particular
manner, it has to be done in that manner only. It is so
argued in reference to Section 128 of the Act, which will
be discussed in a little while from now.
(vii) The plot is in the name of the Society. It is vested in the
Society. The plot was not transferred even to the original
allottee. It was merely a lease, which was granted to the
allottee. The allottee never became absolute owner of the
plot.
(viii) The petitioner restricts its prayer to quashing of the
impugned order dated 18.04.2015 and does not pray
remand of the matter for hearing afresh.
(ix) The impugned order is liable to be quashed; the Court has
to see the approach in taking the decision. Principles as
laid down in the case of Tata Cellular vs. Union of India 1,
command the Court to interfere in such matters.
12. In support of his contentions, the learned counsel placed
reliance on the principle of law as laid down in the case of Mohammed
Moinuddin and others vs. Commissioner for Cooperation and Registrar
of Coop. Societies2. In para 40 of this case, the Hon'ble Supreme
Court observed as hereunder:-
" 40. Once the land in Survey No. 233 in an extent of 1
acre and 14 guntas in Thokatta Village was purchased by
the Society, the property vests in the Society. Therefore, it is
for the Society to consider how to deal with the said land in
accordance with the cooperative principle and the objects
with which the Society was formed as mentioned in the bye-
laws. It is not for the individual members to claim in what
manner the land should be dealt with for the purpose of
distribution amongst its members. At the risk of repetition, it
will have to be stated that the members, who contributed
their funds to the Society, have no exclusive right to claim
any share in the property on the ground that they made the
investments for the purchase of the land. The said claim of
the members both founder members and those who came to
be subsequently admitted in the Society, therefore, stands
rejected."
13. On the other hand, on behalf of respondent no. 4, it is
argued that the impugned order is valid, it is in accordance with law,
(1994) 6 SCC 651
(2014) 8 SCC 661
therefore it does not warrant any interference. The learned Senior
Counsel advanced the following arguments:-
(i) The scope of present writ petition cannot be widened. The
prayer is restricted to quash the impugned order and
remand for hearing the matter afresh on the ground that
the appellate authority was not competent to decide the
appeal. Therefore, now all the issues cannot be raised.
(ii) The only issue involved is as to whether the appellate
authority was competent to decide the appeal. Other
factual aspects cannot be examined; title cannot be
examined in the writ petition. For this purpose, the
petitioner may approach civil court.
(iii) D.P. Nangia had executed POA for consideration to
Major (retd.) Naresh Gupta. It is so argued that since
Major (retd.) Naresh Gupta is not a relative of D.P.
Nangia, it should be presumed that there is some
consideration.
(iv) The POA is irrevocable for consideration. Irrevocable
POA with Will does not come to an end on the death of its
executor; perpetual lease has an element of transfer.
(v) On the death of executor, the POA does not come to an
end. Major (retd.) Naresh Gupta has an interest in the plot
and in this case the provision of Section 202 of the Indian
Contract Act, 1872 (for short, "the Contract Act") are
attracted, and also the provision of Section 208 of the
Contract Act comes into play. Unless the deed of transfer
executed by Major (retd.) Naresh Gupta in favour of
respondent no. 4 Ram Gopal is cancelled, the deed can
neither be quashed nor ignored in a proceeding under
Article 226 of the Constitution of India.
(vi) The respondent no. 4 Ram Gopal has legal rights over the
plot; he got it through a transfer deed, which has not been
cancelled as yet.
(vii) The Society purchased plots through its member and
leased it to each member. Each member has vested right
in the property.
(viii) Once the plot is transferred, a member becomes its owner.
The Bye-laws cannot restrict transfer of plot. In such a
situation, the provision of Transfer of Property Act, 1882
(for short, "the T.P. Act") would come into play.
(ix) In the instant case, perpetual lease has been transferred to
a person, who is eligible to be a member.
(x) Bye-laws are not laws. Any provision of Bye-law in
contravention to the provision of the Act cannot be
enforced; Bye-laws cannot be above the Act.
(xi) The provision of Bye-law 55 is bad, which restricts
transfer of the plot by a member.
(xii) The Society has rightly inducted respondent no. 4 Ram
Gopal as a member of the Society on 03.11.1993 because
on that date, no order of High Court was in force.
(xiii) Administrator of the Society has power to induct the
members. Expulsion of member should be with the
General Body and not with the Committee of
Management.
(xiv) In the Bye-laws there is no provision of resumption of the
plot.
14. In support of his contentions, learned Counsel placed
reliance on the principles of law as laid down in the cases of
Bhagwanbhai Karamanbhai Bharvad v. Arogyanagar Co-op. Housing
Society Ltd. and others 3; Dwarka Prasad Agarwal (D) by L.Rs. and
another vs. B.D. Agarwal and others 4; Satya Pal Anand v. State of
M.P. & Ors.5; Paniyala Shram Sambida Sahakari Samiti Ltd. vs. State
of Uttarakhand and another6; and B. Anjaneyulu vs. V.G.
Raghunathan7, Harshad Govardhan Sondagar v. International Assets
Reconstruction Company Limited and others 8; and Ramesh Chand vs.
Suresh Chand & Anr.9.
15. In the case of Bhagwanbhai Karamanbhai Bharvad
(supra), the Hon'ble Supreme Court, inter alia, held that "As invalid
deeds of conveyance were not declared by any court of law or by
any competent authority, the will be treated as valid....".
AIR 2003 Guj 294
AIR 2003 SC 2686
(2016) 10 SCC 767
2008(3) UC 1896
1995(1) ALT 131
(2014) 6 SCC 1
ILR (2012) V Delhi 48 RFA
16. In the case of Dwarka Prasad Agarwal (supra), the
Hon'ble Supreme Court interpreted further the scope of jurisdiction
under Article 226 of the Constitution of India and limit to exercise. It
was held as hereunder:-
"28. A writ petition is filed in public law remedy. The High
Court while exercising a power of judicial review is concerned with
illegality, irrationality and procedural impropriety of an order
passed by the State or a statutory authority. Remedy under Art. 226
of the Constitution of India cannot be invoked for resolution of a
private law dispute as contra distinguished from a dispute involving
public law character. It is also well settled that a writ remedy is not
available for resolution of a property or a title dispute. Indisputably,
a large number of private disputes between the parties and in
particular the question as to whether any deed of transfer was
effected in favour of M/s Writer and Publishers Pt. Ltd. as also
whether a partition or a family settlement was arrived or not, were
pending adjudication before the Civil Courts of competent
jurisdiction. The reliefs sought for in the writ petition primarily
revolved round the order of authentication of declaration made by
one of the respondents in terms of the provisions of the said Act.
The writ petition, in the factual matrix involved in the matter, could
have been held to be maintainable only for that purpose and no
other."
17. In the case of Satya pal Anand (supra), the cooperative
society had cancelled a plot. There were various litigations raised by
the legal heir of the deceased member. In such a situation, the Hon'ble
Supreme Court observed hereunder:-
"45. The moot question in this case is: whether the action
of the Society to cancel the allotment of the plot followed by
execution of an Extinguishment Deed was a just action? That will
have to be considered keeping in mind the provisions of the Act of
1960 and the Bye-laws of the Society which are binding on the
members of the Society. The interplay of the provisions of the
Contract Act and the Specific Relief Act and the Co-operative Laws
and the Bye Laws of the Society permitting cancellation of
allotment of plot or the membership of the concerned member will
have to be considered in appropriate proceedings. Whether the
decision of the Society to cancel the allotment of plot made in
favour of its member is barred by the law of Limitation Act, is
again a matter to be tested in the proceedings before the
Cooperative Forum where a dispute has been filed by the appellant,
if the appellant pursues that contention.
47. In the present case, the document in question no
doubt is termed as an extinguishment deed. However, in effect, it is
manifestation of the decision of the Society to cancel the allotment
of the subject plot given to its member due to non-fulfilment of the
obligation by the member concerned. The subject document is
linked to the decision of the Society to cancel the membership of
the allottee of the plot given to him/her by the Housing Society. In
other words, it is the decision of the Society, which the Society is
entitled to exercise within the framework of the governing
cooperative laws and the bye-laws which are binding on the
members of the Society. The case of Thota Ganga Laxmi [Thota
Ganga Laxmi v. State of A.P., (2010) 15 SCC 207 : (2013) 1 SCC
(Civ) 1063] , besides the fact that it was dealing with an express
provision contained in the statutory Rule, namely, Rule 26(k)(i) of
the Andhra Pradesh Registration Rules, 1960, was also not a case of
a deed for cancellation of allotment of plot by the Housing Society.
But, of a cancellation of the registered sale deed executed between
private parties, which was sought to be cancelled unilaterally. Even
for the latter reason the exposition in Thota Ganga Laxmi [Thota
Ganga Laxmi v. State of A.P., (2010) 15 SCC 207 : (2013) 1 SCC
(Civ) 1063] will have no application to the fact situation of the
present case."
18. In the case of Paniyala Shram Sambida Sahakari Samiti
Ltd. (supra), this Court, inter alia, held that "by a statutory fiction,
the Administrator has been conferred all the powers of
Management Committee and thus the Administrator has the
power to enroll new members also".
19. In the case of B. Anjaneyulu (supra), a member of the
housing society agreed to sell a plot but subsequently declined to
execute the sale deed on the ground that the purchaser was not a
defence personnel, who only could purchase the plot in view of
Bye-laws 5 and 11 of the Society. Under those circumstances, the
Hon'ble Supreme Court held "Once the society has sold the property
in favour of its member, the member becomes absolute owner of
the property and he can transfer the same to whomsoever he likes
and likewise any person can purchase it for his residential
purposes. The learned Counsel for the appellant contends that
Bye-laws Nos. 5 and 11 prohibit the same. But, in my opinion, Bye-
law Nos. 5 and 11 absolutely have no relation with the right of a
member of the society to alienate his property after he acquired
the same from the society to some third party". It was also held in
this case that Bye-laws are not a law, therefore there cannot be a
presumption that everyone should know it.
20. In the case of Harshad Goveardhan Sondagar (supra), the
learned Senior Advocate for respondent no. 4 referred to the provisions
of law, as discussed in the judgment to argue that lease has to be
determined as per the provisions of T.P. Act. In this case, the Hon'ble
Supreme Court while interpreting Section 111 of the TP Act observed
that "so long a lease of an immovable property does not get
determined, the lessee has a right to enjoy the property and this
right is a right to property and this right cannot be taken away
without the authority of law as provided in Article 300-A of the
Constitution".
21. In the case of Ramesh Chand (supra), the Delhi High
Court referred to the provision of Section 202 of the Contract Act and
observed "the object of giving validity to a power of attorney given
for consideration even after death of the executants is to ensure
that entitlement under such power of attorney remains because the
same is not a regular or a routine power of attorney but the same
has elements of a commercial transaction which cannot be allowed
to be frustrated on account of death of the executant of the power
of attorney".
ON BEHALF OF THE STATE
22. On behalf of the State, no arguments have been advanced.
REPLY ON BEHALF OF THE PETITIONER
23. Replying to the arguments raised by the learned Senior
Counsel for the respondent no. 4, learned counsel for the petitioner
would submit that the lessor has always been the Society. In fact, the
allotment in favour of D.P. Nangia also stipulates that before any
transfer, permission of the Society shall have to be obtained. It is
argued that members of the Society are bound by the Bye-laws and a
void document like the transfer lease deed in favour of respondent no.
4 can be ignored.
24. In support of his contentions, learned counsel has placed
reliance on the judgment in the case of Dhurandhar Prasad Singh v. Jai
Prakash University and others 10, wherein the Hon'ble Supreme Court,
inter alia, held that "the expression "void" has several facets. One
type of void acts, transactions, decrees are those which are wholly
without jurisdiction, ab initio void and for avoiding the same no
declaration is necessary".
EARLIER DECISION IN THE WRIT PETITIONS
AIR 2001 SC 2552
25. The instant petitions were once decided by this Court on
06.07.2018. On that date, on behalf of the petitioner, it was argued that
the Registrar could not have annulled the resolution of the committee
of management without permitting the society to reconsider it in view
of Section 128 of the Act, which is mandatory. Accepting this
argument, the impugned order and the order of the Registrar were set
aside and the matter was remanded back to the Registrar with the
direction to refer back the matter to the Society to reconsider the
resolution. This order dated 06.07.2018 passed in writ petition was
challenged in Special Appeal No. 686 of 2018 (for short, "the Special
Appeal"), which was allowed on 06.03.2019. In the special appeal, the
Court ordered as under:-
"12. While it would not be proper for us to record
a conclusion opinion on whether the proviso to Section 126
is mandatory or directory, we have taken note of the
principles laid down by Courts only to note that mere use of
the word "shall" would not, by itself, make the said proviso
mandatory, nor would failure to mention the consequence,
by itself and without anything more, make it directory.
13. As has been urged both by Sri A.S. Rawat,
learned Senior Counsel for the appellants, and Sri Siddharth
Singh, learned Counsel for the respondent-writ petition, the
learned Single Judge has not examined the rival contentions
on merits. We consider it appropriate, therefore, to set aside
the order under appeal and restore the Writ Petitions to file.
Suffice it to protect the interest of both the parties to direct
status quo, as on today, to be maintained until further orders.
This order shall be the interim order in the writ petition.
14. Sine pleadings are complete, it is open to the
appellants herein either to request the learned Single Judge
to take up the writ petitions for an out of turn hearing or
seek vacation of the interim order."
26. It is after the judgment in the special appeal, the matter is
heard afresh.
SCOPE OF THE INSTANT PETITIONS
27. On behalf of the petitioner, it is argued that the
decision-taking process, illegality, irrationality are the issues which
require to be examined in this case, in view of the judgment in the case
of Tata Cellular (supra). It may be noted here that the judgment in the
case of Tata Cellular (supra), in fact, defines the scope of judicial
review in administrative matters. The principles were further discussed
in the case of Gohil Vishwaraj Hanubhai11, where in para nos. 15, 16
and 17, the Court discussed the law on this point while quoting the
earlier laws, which is as hereunder:
"15. The basic principles governing the judicial review of
administrative action are too well settled. Two judgments
which are frequently quoted in this regard are Associated
Provincial Picture Houses Ltd. v. Wednesbury
Corpn. [Associated Provincial Picture Houses
Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 (CA)]
and Council of Civil Service Unions v. Minister for the Civil
Service [Council of Civil Service Unions v. Minister for the
Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3
All ER 935 (HL)] .
16. Lord Diplock in his celebrated opinion in Council of
Civil Service Unions [Council of Civil Service
Unions v. Minister for the Civil Service, 1985 AC 374 :
(1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)]
summarised the principles as follows: (AC p. 410 D-H &
411 A-B)
"... Judicial review has I think developed to a stage today
when without reiterating any analysis of the steps by which
the development has come about, one can conveniently
classify under three heads the grounds upon which
administrative action is subject to control by judicial review.
The first ground I would call "illegality", the second
"irrationality" and the third "procedural impropriety". That
is not to say that further development on a case-by-case
basis may not in course of time add further grounds. I have
in mind particularly the possible adoption in the future of
the principle of "proportionality" which is recognised in the
administrative law of several of our fellow members of the
European Economic Community; but to dispose of the
instant case the three already well-established heads that I
have mentioned will suffice.
By "illegality", as a ground for judicial review, I mean that
the decision-maker must understand correctly the law that
regulates his decision-making power and must give effect to
it. Whether he has or not is par excellence a justiciable
question to be decided, in the event of dispute, by those
(2017) 13 SCC 621
persons, the Judges, by whom the judicial power of the State
is exercisable.
By "irrationality" I mean what can by now be succinctly
referred to as "Wednesbury unreasonableness (Associated
Provincial Picture Houses Ltd. v. Wednesbury
Corpn. [Associated Provincial Picture Houses
Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 (CA)] ). It
applies to a decision which is so outrageous in its defiance
of logic or of accepted moral standards that no sensible
person who had applied his mind to the question to be
decided could have arrived at it. Whether a decision falls
within this category is a question that Judges by their
training and experience should be well equipped to answer,
or else there would be something badly wrong with our
judicial system. To justify the court's exercise of this role,
resort I think is today no longer needed to Viscount
Radcliffe's ingenious explanation in Edwards (Inspector of
Taxes) v. Bairstow [Edwards (Inspector of
Taxes) v. Bairstow, 1956 AC 14 : (1955) 3 WLR 410 (HL)]
of irrationality as a ground for a court's reversal of a
decision by ascribing it to an inferred though unidentifiable
mistake of law by the decision-maker. "Irrationality" by
now can stand upon its own feet as an accepted ground on
which a decision may be attacked by judicial review.
I have described the third head as "procedural impropriety"
rather than failure to observe basic rules of natural justice or
failure to act with procedural fairness towards the person
who will be affected by the decision. This is because
susceptibility to judicial review under this head covers also
failure by an administrative tribunal to observe procedural
rules that are expressly laid down in the legislative
instrument by which its jurisdiction is conferred, even where
such failure does not involve any denial of natural justice.
But the instant case is not concerned with the proceedings of
an administrative tribunal at all."
It can be seen from the above extract, Lord Diplock
identified three heads under which judicial review is
undertaken i.e. illegality, irrationality and procedural
impropriety. He also recognised the possibility of new heads
such as "proportionality" being identified in future. He
explained the concepts of the three already identified heads.
He declared that the head "irrationality" is synonymous with
"Wednesbury unreasonableness".
17. The principle laid down in Council of Civil Service
Unions [Council of Civil Service Unions v. Minister for the
Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3
All ER 935 (HL)] has been quoted with approval by this
Court in Tata Cellular v. Union of India [Tata
Cellular v. Union of India, (1994) 6 SCC 651] and Siemens
Public Communication Networks (P) Ltd. v. Union of
India [Siemens Public Communication Networks (P)
Ltd. v. Union of India, (2008) 16 SCC 215 : AIR 2009 SC
1204] .
28. In the instant case, rights of the persons were involved
when the order dated 28.11.2002 was passed by the Registrar and
when the impugned order was passed by the appellate authority. The
impugned order had civil consequences. The plot was resumed by the
petitioner and the membership of respondent no. 4 Ram Gopal was
cancelled. Both had civil consequences.
29. These petitions have been filed for issuance of writ, order
or direction in the nature of certiorari. What is argued on behalf of the
petitioner is that the decision-taking process, illegality, irrationality are
to be examined in the instance case. Reference has been made to the
judgment in the case of Tata Cellular (supra).
30. As stated, in the case of Tata Cellular (supra), the scope
of judicial review vis-à-vis executive functioning has been interpreted
and stated. These principles have been further reiterated in the case of
Gohil Vishwaraj Hanubhai (supra). It relates to the administrative
action. The question is: Whether the impugned order is an
administrative action?
31. The actions, judicial, quasi-judicial or pure administrative
are though distinct, but in the recent past, the distinction between an
administrative action and quasi-judicial action has blurred to the extent
that at times they appear as one and the same.
32. In the case of T.C. Basappa v. T. Nagappa and another12,
the Hon'ble Supreme Court quoted from the judgment of Rex v.
Electricity Commissioner13 to draw distinction between purely
ministerial acts and quasi-judicial functions as hereunder:
"7. One of the fundamental principles in regard to the
issuing of a writ of certiorari, is, that the writ can be availed
of only to remove or adjudicate on the validity of judicial
acts. The expression "judicial acts" includes the exercise of
quasi-judicial functions by administrative bodies or other
authorities or persons obliged to exercise such functions and
is used in contrast with what are purely ministerial acts.
Atkin, L.J. thus summed up the law on this point
in Rex v. Electricity Commissioners [(1924) 1 KB 171 at
205] :
"Whenever anybody or persons having legal authority to
determine questions affecting the rights of subjects and
having the duty to act judicially act in excess of their legal
authority, they are subject to the controlling jurisdiction of
the King's Bench Division exercised in these writs."
The second essential feature of a writ of certiorari is that the
control which is exercised through it over judicial or quasi-
judicial tribunals or bodies is not in an appellate but
supervisory capacity. In granting a writ of certiorari the
superior court does not exercise the powers of an appellate
tribunal. It does not review or reweigh the evidence upon
which the determination of the inferior tribunal purports to
be based. It demolishes the order which it considers to be
without jurisdiction or palpably erroneous but does not
substitute its own views for those of the inferior tribunal.
The offending order or proceeding so to say is put out of the
way as one which should not be used to the detriment of any
person [ Vide Per Lord Cairns in Walshall's
Overseers v. London and North Western Railway Co.,
(1879) 4 AC 30, 39.] .
"
33. The scope of certiorari has further been interpreted in the
case of T.C. Basappa (supra) by the Hon'ble Supreme Court as
hereunder:-
"8. The supervision of the superior court
exercised through writs of certiorari goes on two points, as
has been expressed by Lord Summer in King v. Nat Bell
Liquors Limited [(1922) 2 AC 128, 156] . One is the area of
inferior jurisdiction and the qualifications and conditions of
its exercise; the other is the observance of law in the course
AIR 1954 SC 440
(1924) 1 (KB) 171 at 205
of its exercise. These two heads normally cover all the
grounds on which a writ of certiorari could be demanded. In
fact there is little difficulty in the enunciation of the
principles; the difficulty really arises in applying the
principles to the facts of a particular case.
9. Certiorari may lie and is generally granted
when a court has acted without or in excess of its
jurisdiction. The want of jurisdiction may arise from the
nature of the subject-matter of the proceeding or from the
absence of some preliminary proceeding or the court itself
may not be legally constituted or suffer from certain
disability by reason of extraneous circumstances [
Vide Halsbury, 2nd Edn., Vol. IX, p. 880] . When the
jurisdiction of the court depends upon the existence of some
collateral fact, it is well settled that the court cannot by a
wrong decision of the fact give it jurisdiction which it would
not otherwise possess [ Vide Banbury v. Fuller, 9 Exch.
111; R v. Income Tax Special Purposes Commissioners, 21
QBD 313] ."
34. Similar principles were further reiterated in the case of
A.K. Kraipak and others v. Union of India and others 14. In this case,
the Hon'ble Supreme Court, in paragraph 13, further interpreted the
dividing line between an administrative power and a quasi-judicial
power as hereunder:-
"13. The dividing line between an administrative power
and a quasi-judicial power is quite thin and is being
gradually obliterated. For determining whether a power is an
administrative power or a quasi-judicial power one has to
look to the nature of the power conferred, the person or
persons on whom it is conferred, the framework of the law
conferring that power, the consequences ensuing from the
exercise of that power and the manner in which that power
is expected to be exercised. Under our Constitution the rule
of law pervades over the entire field of administration.
Every organ of the State under our Constitution is regulated
and controlled by the rule of law. In a welfare State like ours
it is inevitable that the jurisdiction of the administrative
bodies is increasing at a rapid rate. The concept of rule of
law would lose its vitality if the instrumentalities of the
State are not charged with the duty of discharging their
functions in a fair and just manner. The requirement of
acting judicially in essence is nothing but a requirement to
act justly and fairly and not arbitrarily or capriciously. The
procedures which are considered inherent in the exercise of
a judicial power are merely those which facilitate if not
ensure a just and fair decision. In recent years the concept of
quasi-judicial power has been undergoing a radical change.
What was considered as an administrative power some years
back is now being considered as a quasi-judicial power. The
(1969) 2 SCC 262
following observations of Lord Parker C.J.,
in Regina v. Criminal Injuries Compensation Board Ex
parte Lain [(1967) 2 QB 864 at p. 881] are instructive.
"With regard to Mr Bridge's second point I cannot think that
Atkin L.J., intended to confine his principle to cases in
which the determination affected rights in the sense of
enforceable rights. Indeed, in the Electricity Commissioners
case the rights determined were at any rate not immediately
enforceable rights since the scheme laid down by the
commissioners had to be approved by the Minister of
Transport and by resolutions of Parliament. The
Commissioners nevertheless were held amenable to the
jurisdiction of this court. Moreover, as can be seen
from Rex v. Postmaster-General Ex parte
Carmichael [(1928) 1 KB 291] and Rex v. Boycott Ex parte
Kesslay [(1939) 2 KB 651] the remedy is available even
though the decision is merely a step as a result of which
legally enforceable rights may be affected.
The position as I see it is that the exact limits of the ancient
remedy by way of certiorari have never been and ought not
to be specifically defined. They have varied from time to
time being extended to meet changing conditions. At one
time the writ only went to an inferior court, later its ambit
was extended to statutory tribunals determining a lis inter
partes. Later again it extended to cases where there was no
lis in the strict sense of the word but where immediate or
subsequent rights of a citizen were affected. The only
constant limits throughout were that it was performing a
public duty. Private or domestic tribunals have always been
outside the scope of certiorari since their authority is derived
solely from contract, that is, from the agreement of the
parties concerned.
Finally, it is to be observed that the remedy has now been
extended, See Reg. v. Manchester Legal Aid Committee, Ex
parte R.A. Brand & Co. Ltd. [(1952) 2 QB 413] to cases in
which the decision of an administrative officer is only
arrived at after an inquiry or process of a judicial or quasi-
judicial character. In such a case this court has jurisdiction
to supervise that process.............."
35. In the case of General Manager, Electrical Rengali Hydro
Electric Project, Orissa and others v. Giridhari Sahu and others 15, the
Hon'ble Supreme Court also quoted with approval the proposition as
laid down in the case of Hari Vishnu Kamath v. Ahmad Ishaq 16, with
regard to certiorari as hereunder:
"21. In Hari Vishnu Kamath v. Ahmad Ishaque [Hari
Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233] this
Court held: (AIR pp. 243-44, paras 21 & 23)
(2019) 10 SCC 695
AIR 1955 SC 233
"21. ... On these authorities, the following propositions may
be taken as established: (1) Certiorari will be issued for
correcting errors of jurisdiction, as when an inferior court or
tribunal acts without jurisdiction or in excess of it, or fails to
exercise it. (2) Certiorari will also be issued when the court
or tribunal acts illegally in the exercise of its undoubted
jurisdiction, as when it decides without giving an
opportunity to the parties to be heard, or violates the
principles of natural justice. (3) The court issuing a writ of
certiorari acts in exercise of a supervisory and not appellate
jurisdiction. One consequence of this is that the Court will
not review findings of fact reached by the inferior court or
tribunal, even if they be erroneous. This is on the principle
that a court which has jurisdiction over a subject-matter has
jurisdiction to decide wrong as well as right, and when the
legislature does not choose to confer a right of appeal
against that decision, it would be defeating its purpose and
policy, if a superior court were to rehear the case on the
evidence, and substitute its own findings in certiorari. These
propositions are well-settled and are not in dispute.
***
23. It may therefore be taken as settled that a writ of
certiorari could be issued to correct an error of law. But it
is essential that it should be something more than a mere
error; it must be one which must be manifest on the face of
the record. ...
The fact is that what is an error apparent on the face of the
record cannot be defined precisely or exhaustively, there
being an element of indefiniteness inherent in its very
nature, and it must be left to be determined judicially on the
facts of each case."
(emphasis supplied)
"
36. After discussing the law on the point in the case of
Giridhari Sahu (supra), the Hon'ble Supreme Court summed up the
principles for issuance of certiorari as hereunder:
"28. On the conspectus of the decisions and
material, we would hold as follows: the jurisdiction to issue
writ of certiorari is supervisory and not appellate. The Court
considering a writ application of certiorari will not don the
cap of an appellate court. It will not reappreciate evidence.
The writ of certiorari is intended to correct jurisdictional
excesses. A writ of prohibition would issue when a tribunal
or authority has not yet concluded its proceedings. Once a
decision is rendered by a body amenable to certiorari
jurisdiction, certiorari could be issued when a jurisdictional
error is clearly established. The jurisdictional error may be
from failure to observe the limits of its jurisdiction. It may
arise from the procedure adopted by the body after validly
assuming jurisdiction. It may act in violation of principles of
natural justice. The body whose decision which comes
under attack may decide a collateral fact which is also a
jurisdictional fact and assume jurisdiction. Such a finding of
fact is not immune from being interfered with by a writ of
certiorari. As far as the finding of fact which is one within
the jurisdiction of the court, it is ordinarily a matter "off
bounds" for the writ court. This is for the reason that a body
which has jurisdiction to decide the matter has the
jurisdiction to decide it correctly or wrongly. It would
become a mere error and that too an error of fact. However,
gross it may amount to, it does not amount to an error of
law. An error of law which becomes vulnerable to judicial
scrutiny by way of certiorari must also be one which is
apparent on the face of the record. As held by this Court
in Hari Vishnu Kamath [Hari Vishnu Kamath v. Ahmad
Ishaque, AIR 1955 SC 233] , as to what constitutes an error
apparent on the face of the record, is a matter to be decided
by the court on the facts of each case. A finding of fact
which is not supported by any evidence would be perverse
and in fact would constitute an error of law enabling the writ
court to interfere. It is also to be noticed that if the
overwhelming weight of the evidence does not support the
finding, it would render the decision amenable to certiorari
jurisdiction. This would be the same as a finding which is
wholly unwarranted by the evidence which is what this
Court has laid down (see Parry & Co. Ltd. [Parry & Co.
Ltd. v. P.C. Pal, AIR 1970 SC 1334 : (1969) 2 SCR 976] )."
37. The law as has been settled for issuance of writ of
certiorari makes it abundantly clear that this writ is intended to correct
jurisdictional excesses, error of law which is apparent, perverse
finding, etc.
38. In the instant case, the impugned order has been passed
against the order of the Registrar. The order of the Registrar had civil
consequences. The appellate authority is a statutory authority. It was
definitely required to follow the principle of natural justice. Therefore,
undoubtedly, the impugned order is a quasi-judicial order and it is
amenable to the writ jurisdiction for issuance of writ of certiorari,
provided there are errors and also provided it makes out a case for
issuance of writ.
39. In all these writ petitions, the factual aspects are almost
admitted barring some disputes, which will be discussed at appropriate
places.
40. In view of the above, the Court proceeds to decide the
matter.
THE ISSUES INVOLVED
41. On behalf of the petitioner, it is argued that the petitioner
restricts its prayer to quash the impugned order dated 18.04.2015 and
does not press for remand of the matter for hearing afresh.
42. On the other hand, on behalf of respondent no. 4, it is
argued that the writ petition has been filed on the ground that the
officer, who acted as an appellate authority was not a person
competent to pass the order, therefore, the impugned order be quashed
and remitted back for hearing afresh and beyond this the matter may
not be considered.
43. The reliefs sought in the instant petition are as hereunder:
"A. To issue a writ order or direction in the
nature of certiorari quashing the impugned order
dated 18-4-2015 passed by the respondent no. 2 in
Appeal No. 7/13 "Doon Valley Officers Co-
operative Society Vs. Registrar, Co-operative
Societies and others" (Annexure no. 1 to the
petition) and may further be pleased to direct the
Chief Secretary, State of Uttarakhand to nominate a
competent, unbiased and able officer for hearing
and deciding the petitioner's appeal on merit after
giving due opportunity of being heard to the
petitioner.
B. To issue any other writ order or direction,
which this Hon'ble Court may deem fit and proper
in the circumstances of the case."
44. In fact, in the petition, one of the grounds for challenging
the impugned order is that the appellate authority was working as the
Registrar as well as, as the Secretary, Cooperative Societies at the
same time, therefore the petitioner had requested him not to hear the
appeal, but without affording any opportunity of hearing to the
petitioner, the appeal was decided and the impugned order has been
passed. In one of the grounds, it has also been stated that the impugned
order is bad because the appellate authority has not taken into account
the fact that the lease deed between respondent no. 4 Ram Gopal and
Major (retd.) Naresh Gupta was based on fraudulent declaration that
POA was in force, whereas it was no longer in force as the author of
the POA had died three years prior to the execution of the deed.
45. A fact needs special mention with regard to membership.
A writ petition bearing Writ 41200/02 No. Nil of 1992 was filed in the
High Court of Allahabad (for short, "the Allahabad Petition"), in
which on 27.11.1992 the following order was passed:-
"Issue notice.
Seeing the facts and circumstances of the
case we issue an interim mandamus directing the
respondents to hold and complete the election for
constituting the management committees of the
Society known as Doon Valley Officers,
Cooperative Housing Society Ltd. Dehradun within
a period of three months and further not to enroll
roll new members for the society and not to allot
plots to them or to show cause by filing a counter
affidavit within a month from the date of service of
a certified copy of this order upon them. The
petitioner shall file affidavit of service annexing
therewith : X acknowledgment of the receipt of this
order by the said respondents, failing which this
order shall cease to be operative."
46. On 24.08.2002, the petitioner cancelled the membership
of respondent no. 4 Ram Gopal, which was set aside by the Registrar
by an order dated 28.11.2002. The plot was also resumed by the
petitioner on the ground that construction was not raised on time in
view of Bye-law 50. It was so done on 25.09.2002. This resumption
was not challenged at any forum. But as stated, when the respondent
no. 4 Ram Gopal sought extension of time for raising construction, it
was objected to by the petitioner on the grounds that, firstly, the
membership of the petitioner had been cancelled and, secondly, that
the original allottee D.P. Nangia had died, therefore, no one should be
allowed to illegally occupy the plot. These objections were not
accepted by the Registrar by order dated 28.11.2002, which was finally
confirmed in the impugned order.
47. The order dated 28.11.2002 was challenged by the
petitioner on various grounds. Annexure 4 is the memo of appeal. The
grounds are as hereunder:-
(i) Respondent no. 4 was wrongly made a member in
violation of the order dated 27.11.1992 passed in
the Allahabad Petition.
(ii) Respondent no. 4 Ram Gopal had been removed
from the membership on 24.08.2002 by the
petitioner.
(iii) Respondent no. 4 Ram Gopal wrongly sought
extension of time for construction of house without
reference to the Society and without confirming
from the Society whether the plot was in the name
of respondent no. 4 Ram Gopal.
(iv) When respondent no. 4 Ram Gopal started
unauthorized construction, police was informed and
FIR was lodged.
(v) Respondent no. 4 Ram Gopal clandestinely and
without obtaining the mandatory prior permission
of the Society procured the transfer deed in his
favour.
(vi) The power of attorney executed by D.P. Nangia in
favour of Major (retd.) Naresh Gupta was
ineffective on the date the deed was executed in
favour of respondent no. 4 Ram Gopal because
D.P. Nangia had died three years prior thereto.
(vii) The transfer deed could not have been executed
without prior permission of the Society as per
clause (4) of the original lease deed.
(viii) Respondent no. 4 wrongly got the map approved
without intervention of the Society.
48. The above were the grounds of challenge to the order
dated 28.11.2002 passed by the Registrar. In the impugned order, the
appellate authority, inter alia, observed as hereunder:
(i) Respondent no. 4 Ram Gopal got the plot
transferred in his name from the power of attorney
holder Major (retd.) Naresh Gupta; he also got
maps approved from the MDDA and started
construction, therefore, valuable rights have been
vested in respondent no. 4 Ram Gopal and in such a
case resumption of plot is not justified as it would
violate the fundamental right of respondent no. 4
Ram Gopal. (Para 2)
(ii) In the original lease deed, there is no stipulation
that if house is not constructed within time, the plot
will be resumed by the Society. Resumption of plot
by the society is against the principle of natural
justice and Fundamental Rights. (Para 3)
(iii) Bye-laws are not law. Therefore resumption of plot
as provided in the Bye-laws is not valid. (para 4)
(iv) Even if it is believed that D.P. Nangia had died
three years prior to execution of transfer deed in
favour of respondent no. 4, the aggrieved party
would have been the legal representative of D.P.
Nangia but they did not object to the transfer in
favour of respondent no. 4 Ram Gopal. Even if the
Society considers it a fraudulent act, the Society
would have lodged an FIR or would have raised an
objection with the Registrar, which was not done.
(Para 6)
(v) In the Allahabad Petition, the order dated
27.11.1992 was subject to filing of an affidavit of
service by the petitioner, which was not filed.
Therefore order dated 27.11.1992 had ceased
effect. In view thereof it cannot be said that there
was any stay in the induction of new members in
the Society. (Para 7)
(vi) The condition of inducting the members in the
Bye-laws is against the principles of the
cooperative societies The cooperative societies
should run in a democratic manner. The power to
resume a plot should be vested with the General
Body and not in the committee of management.
(Para 10)
(vii) The purpose of Bye-laws 55 to 57 is to provide
1/10th of the sale consideration to the Society and if
in the instant case the Society did not receive 1/10th
of the consideration amount, this amount may still
be demanded by the Society. (Para 11 to 15)
(viii) Once a plot is allotted by the Committee, thereafter
the Society has no right to interfere in the
fundamental rights of the members. (Para 16)
49. The above narration of facts goes to show as to how the
membership of respondent no. 4 was cancelled; how and why the plot
was resumed by the Society and how the petitioner objected to the
extension of time granted to respondent no. 4 by the Registrar for
construction of house and how it was rejected by the Registrar on
28.11.2002. The above narration also reveals as to what were the
grounds, which were taken in the appeal by the petitioner against the
order dated 28.11.2002. In fact all the available grounds were taken by
the petitioner while challenging the order dated 28.11.2002 of the
Registrar. It was not restricted to membership, resumption only, but it
went beyond that.
50. It has also been stated, as above, that initially the writ
petition was decided on 6.7.2018 only on the ground that compliance
of mandatory provision of Section 128 of the Act has not been done.
But in the special appeal, what the Court did was opened all the issues
for discussion when the Court directed that rival contentions on
"merits" have to be considered".
51. In fact, during the course of arguments every aspect has
been canvassed before this Court by the learned counsel appearing for
the parties. Therefore this Court is of a view that this writ petition is
not restricted to determine the capability or propriety of the appellate
authority to decide the appeal (in view of the objections taken by the
petitioner that the appellate authority at the relevant time was holding
the position of Registrar as well as the Secretary, Cooperative
Societies). The impugned order dated 18.04.2015 has to be seen. It has
to be tested on all the aspects as raised during the course of arguments
in these petitions. By doing so, in essence, the scope of writ petition is
not being enlarged. Order dated 18.04.2015 is impugned. It would be
in the interest of justice to make complete and effective adjudication
once and for all. Accordingly, the Court proceeds to appreciate the
arguments as advanced before it.
52. Before the Court proceeds to interpret the provision of
Section 128 of the Act to ascertain its nature as to whether it is
mandatory or directory, it would be apt to discuss as to why the Act is;
what the Act provides for.
CONCEPT OF COOPERATIVE SOCIETIES
53. As the name suggests, the Cooperative Societies are
association of persons with the specified objectives. The history of
cooperative movements in this country has its roots in the past. With
minimum interference from the State, the purposes are to let the
cooperative techniques be adopted in various spheres of activities in
public life. The authorities appointed are just to ensure that such
societies are run in accordance with its Bye-laws and its objectives.
The Bye-laws are nothing but a kind of agreement (it will be further
discussed in detail at a later stage), which should be in consonance
with the purpose or the objectives of the Society and in conformity
with the statute.
54. In the case of Andhra Pradesh Cooperative Societies v.
Government of A.P. and others 17, the Hon'ble Supreme Court had an
occasion to discuss about the cooperative movement in this country
and in para 47, the Hon'ble Supreme Court observed as hereunder:-
"47. The cooperative movement by its very nature, is a
form of voluntary association where individuals unite for
mutual benefit in the production and distribution of wealth
upon principles of equity, reason and common good. So, the
basic purpose of forming a cooperative society remains to
promote the economic interest of its members in accordance
with the well-recognised cooperative principles. Members
of an association have the right to be associated only with
those whom they consider eligible to be admitted and have
right to deny admission to those with whom they do not
want to associate. The right to form an association cannot be
infringed by forced inclusion of unwarranted persons in a
group. Right to associate is for the purpose of enjoying in
expressive activities. The constitutional right to freely
associate with others encompasses associational ties
designed to further the social, legal and economic benefits
of the members of the association. By statutory
interventions, the State is not permitted to change the
fundamental character of the association or alter the
composition of the society itself. The significant
encroachment upon associational freedom cannot be
justified on the basis of any interest of the Government.
However, when the association gets registered under the
Cooperative Societies Act, it is governed by the provisions
(2011) 9 SCC 286
of the Act and the Rules framed thereunder. In case the
association has an option/choice to get registered under a
particular statute, if there are more than one statutes
operating in the field, the State cannot force the society to
get itself registered under a statute for which the society has
not applied."
55. Further, in the case of Vipulbhai M. Chaudhary vs.
Gujarat Cooperative Milk Marketing Federation Ltd. and others 18, the
Hon'ble Supreme Court extensively quoted the history behind the
cooperative movement and the cooperative principles. The Hon'ble
Supreme Court observed as hereunder:-
"8. Apart from providing for the right to form cooperative
societies to be a fundamental right under Article 19 of the
Constitution of India and insertion of Article 43-B under the
directive principles of State policy on promotion of
cooperative societies, the 97th Amendment also introduced
a new Part IX-B on cooperative societies. Reference to the
Statement of Objects and Reasons of the Amendment would
give a clear picture as to the need to strengthen the
democratic basis and provide for a constitutional status to
the cooperative societies. Thus, one has to see the
constitutional aspirations on the concept of cooperative
societies after the 97th Amendment in the Constitution of
India which came into effect on 12-1-2012.
"Statement of Objects and Reasons
1. The cooperative sector, over the years, has made
significant contribution to various sectors of national
economy and has achieved voluminous growth. However, it
has shown weaknesses in safeguarding the interests of the
members and fulfilment of objects for which these
institutions were organised. There have been instances
where elections have been postponed indefinitely and
nominated office-bearers or administrators remaining in
charge of these institutions for a long time. This reduces the
accountability of the management of cooperative societies to
their members. Inadequate professionalism in management
in many of the cooperative institutions has led to poor
services and low productivity. Cooperatives need to run on
well-established democratic principles and elections held on
time and in a free and fair manner. Therefore, there is a need
to initiate fundamental reforms to revitalise these
institutions in order to ensure their contribution in the
economic development of the country and to serve the
interests of members and public at large and also to ensure
(2015) 8 SCC 1
their autonomy, democratic functioning and professional
management.
2. 'Cooperative societies' is a subject enumerated in Entry
32 of the State List of the Seventh Schedule of the
Constitution and the State Legislatures have accordingly
enacted legislations on cooperative societies. Within the
framework of State Acts, growth of cooperatives on large
scale was envisaged as part of the efforts for securing social
and economic justice and equitable distribution of the fruits
of development. It has, however, been experienced that in
spite of considerable expansion of cooperatives, their
performance in qualitative terms has not been up to the
desired level. Considering the need for reforms in the
Cooperative Societies Acts of the States, consultations with
the State Governments have been held at several occasions
and in the conferences of State Cooperative Ministers. A
strong need has been felt for amending the Constitution so
as to keep the cooperatives free from unnecessary outside
interferences and also to ensure their autonomous
organisational set-up and their democratic functioning.
3.The Central Government is committed to ensure that the
cooperative societies in the country function in a
democratic, professional, autonomous and economically
sound manner. With a view to bring the necessary reforms,
it is proposed to incorporate a new Part in the Constitution
so as to provide for certain provisions covering the vital
aspects of working of cooperative societies like democratic,
autonomous and professional functioning. A new article is
also proposed to be inserted in Part IV of the Constitution
(Directive Principles of State Policy) for the States to
endeavour to promote voluntary formation, autonomous
functioning, democratic control and professional
management of cooperative societies. The proposed new
Part in the Constitution, inter alia, seeks to empower
Parliament in respect of multi-State cooperative societies
and the State Legislatures in case of other cooperative
societies to make appropriate law, laying down the
following matters, namely:
(a) provisions for incorporation, regulation and winding up
of cooperative societies based on the principles of
democratic member-control, member-economic
participation and autonomous functioning;
(b) specifying the maximum number of Directors of a
cooperative society to be not exceeding twenty-one
members;
(c) providing for a fixed term of five years from the date of
election in respect of the elected members of the Board and
its office-bearers;
(d) providing for a maximum time-limit of six months
during which a Board of Directors of cooperative society
could be kept under supersession or suspension;
(e) providing for independent professional audit;
(f) providing for right of information to the members of the
cooperative societies;
(g) empowering the State Governments to obtain periodic
reports of activities and accounts of cooperative societies;
(h) providing for the reservation of one seat for the
Scheduled Castes or the Scheduled Tribes and two seats for
women on the Board of every cooperative society, which
have individuals as members from such categories;
(i) providing for offences relating to cooperative societies
and penalties in respect of such offences.
4.It is expected that these provisions will not only ensure the
autonomous and democratic functioning of cooperatives, but
also ensure the accountability of management to the
members and other stakeholders and shall provide for
deterrence for violation of the provisions of the law.
5. The Bill seeks to achieve the above objectives."
9. Article 43-B of the Constitution of India provides for the
promotion of cooperative societies:
"43-B. Promotion of cooperative societies.--The State shall
endeavour to promote voluntary formation, autonomous
functioning, democratic control and professional management of
cooperative societies."
56. The Act has been enacted to consolidate and amend the
law relating to cooperative societies. Section 4 of the Act provides that
a Society which has its object the promotion of economic interest of its
members in accordance with the cooperative principles by a Society
established with the objectives of facilitating such a society, may be
registered under the Act. Section 7, inter alia, provides that the
Bye-laws should not be inconsistent with the provisions of the Act and
the Rules made therein. According to Section 9 of the Act, the
Cooperative Societies are body corporate. Section 28 of the Act, inter
alia, provides that the final authority of the cooperative society vests in
the General Body of its members in general meeting. Section 29 of the
Act, inter alia, provides that the management of cooperative societies
vests in a Committee of Management constituted in accordance with
the Act, the Rules and the Bye-laws, which shall exercise such powers
and perform such duties as may be conferred and imposed by the Act,
Rules or the Bye-laws. Section 37 of the Act gives the Registrar
emergency powers to seize records, etc. in cases when there are
apprehensions of tampering with or the funds or property of the society
are likely to be misappropriated, etc. Section 29(5) of the Act also
makes provision with regard to appointment of Administrator, which
may be appointed by the Registrar.
57. The above and other provisions of the Act make it
abundantly clear that the basic concept is cooperative techniques in
governance of group activities. Interference through Registrar and
other officers is limited to the extent of ensuring that these cooperative
societies are functional in accordance with the objectives with which
they were so constituted. In this context, now the provision of Section
128 of the Act will be examined.
WHETHER THE PROVISION OF SECTION 128 OF THE ACT
IS MANDATORY OR DIRECTORY
58. In the instant case, the order dated 28.11.2002 of the
Registrar is in fact not an order passed under Section 128 of the Act.
As stated, this order was passed on the objections of the petitioner
against extension of time for construction of house, as granted by the
Registrar to respondent no.4. Of course, the Registrar had also passed
an order on 28.11.2002 (conveyed vide Letter No.
691/Vidhi/Ni.Sa.Sa./2002 dated 28.11.2002) by which the resolution
cancelling the membership of respondent no. 4 was set aside, which
has been filed by the petitioner along with his rejoinder affidavit, but it
also does not reveal that while doing so the matter was sent by the
Registrar for reconsideration of the committee of management.
59. In Writ Petition (M/S) No. 1101 of 2015 and Writ Petition
(M/S) No. 1102 of 2015, by order dated 27.11.2002 (conveyed by
Letter No. 689/Vidhi/Ni.Sa.Sa. dated 27.11.2002) and order dated
28.11.2002 (Conveyed by Letter No. 692/Vidhi/Ni.Sa.Sa. dated
28.11.2002), respectively, the resolution dated 14.09.2002 and
24.08.2002, respectively, were annulled. This is done under Section
128 of the Act.
60. The proviso to Section 128 of the Act has got attention of
this Court when the petition was earlier decided on 06.07.2018 and the
Court then held that the word "shall" used therein is mandatory. Is it
mandatory? It has to be examined.
61. Section 128 of the Act is as hereunder:-
"128. Registrar's powers to annul resolution of a co-
operative society or cancel order passed by an officer of
a co-operative society in certain cases. - The Registrar
may -
(i) annul any resolution passed by the committee of
management, or the general body of any co-operative
society; or
(ii) cancel any order passed by an officer or a co-
operative society; if he is of the opinion that the resolution
or the order, as the case may be is not covered by the objects
of the society, or is in contravention of the provisions of this
Act, the rules or the bye-laws of the society, where upon
every such resolution or order shall become void and in-
operative and be deleted from the records of the society.
Provided that, the Registrar shall, before making any
order, require the Committee of Management, general body
or officer of the co-operative society to reconsider the
resolution, or as the case may be, the order, within such
period as he may fix but which shall not be less than fifteen
days, and if he deems fit may stay the operation of that
resolution or the order during such period."
(emphasis supplied)
62. In the Special Appeal when the order dated 06.07.2018
was assailed, various principles have been discussed, which may guide
to interpret the word "shall" in its effect as mandatory or directory.
The rule of interpretation is very balanced and simple that a word has
to be read in the context it is used. Out of context reading is not
permissible. The various rules of interpretation are applied, in fact, in
the situation wherever there is an ambiguity; to ascertain the intention
of the Legislature in making the enactment.
63. Whether the word "shall", wherever and in whatever
context is used, should be taken as mandatory or it may also be
considered as directory and more importantly what are the principles
that guide such situation?
64. In the case of State of U.P. and others v. Babu Ram
Upadhya 19, the Hon'ble Supreme Court discussed the interpretation of
word "shall" and referred the various judgments on the subject and
held as hereunder:-
"29. The relevant rules of interpretation may be
briefly stated thus : When a statute uses the word "shall",
prima facie, it is mandatory, but the Court may ascertain
the real intention of the legislature by carefully
AIR 1961 SC 751
attending to the whole scope of the statute For
ascertaining the real intention of the Legislature the
Court may consider, inter alia, the nature and the
design of the statute, and the consequences which
would follow from construing it the one way or the
other, the impact of other provisions whereby the
necessity of complying with the provisions in question
is avoided the circumstance, namely, that the statute
provides for a contingency of the non-compliance with
the provisions, the fact that the non-compliance with
the provisions is or is not visited by some penalty, the
serious or trivial consequences that flow therefrom,
and, above all, whether the object of the legislation will
be defeated or furthered."
(emphasis supplied)
65. In the case of Raja Buland Sugar Company Ltd. v.
Municipal Board, Rampur 20, the similar principles have been adopted
by the Hon'ble Supreme Court with regard to interpretation of the
word "shall" and one of the consideration which has been added is
"the serious general inconvenience or injustice to persons resulting
from whether the; provision is read one way or the other, the
relation of the particular provision to other provisions dealing
with the same subject and other considerations which may arise on
the facts of a particular case including the language of the
provision, have all to be taken into account in arriving at the
conclusion whether a particular provision is mandatory or
directory."
66. In the case of Balwant Singh & others v. Anand Kumar
Sharma and others 21, the Hon'ble Supreme Court observed as
hereunder:
AIR 1965 SC 895
(2003) 3 SCC 433
"7. Yet there is another aspect of the matter which
cannot be lost sight of. It is a well-settled principle that if a thing is
required to be done by a private person within a specified time, the
same would ordinarily be mandatory but when a public functionary
is required to perform a public function within a time-frame, the
same will be held to be directory unless the consequences therefor
are specified. In sutherland's Statutory Construction, 3rd Edn., Vol.
3 at p. 107, it is pointed out that a statutory direction to private
individuals should generally be considered as mandatory and that
the rule is just the opposite to that which obtains with respect to
public officers. Again, at p. 109, it is pointed out often the question
as to whether a mandatory or directory construction should be given
to a statutory provision may be determined by an expression in the
statute itself of the result that shall follow non-compliance with the
provision. At p. 111 it is stated as follows:
"As a corollary of the rule outlined above, the fact
that no consequences of non-compliance are stated in the
statute, has been considered as a factor tending towards a
directory construction. But this is only an element to be
considered, and is by no means conclusive."
67. Further, in the case of Shaikh Salim Haji Abdul
Khaymsab v. Kumar & others 22, the Hon'ble Supreme Court
interpreted the word "shall" when used in a procedural law and
observed as hereunder:
"14. Processual law is not to be a tyrant but a servant, not
an obstruction but an aid to justice. Procedural prescriptions are the
handmaid and not the mistress, a lubricant, not a resistant in the
administration of justice.
15. It is also to be noted that though the power of the
court under the proviso appended to Rule 1 of Order 8 is
circumscribed by the words "shall not be later than ninety days" but
the consequences flowing from non-extension of time are not
specifically provided for though they may be read by necessary
implication. Merely, because a provision of law is couched in a
negative language implying mandatory character, the same is not
without exceptions. The courts, when called upon to interpret the
nature of the provision, may, keeping in view the entire context in
which the provision came to be enacted, hold the same to be
directory though worded in the negative form."
68. The ratio laid down in the above case laws and other
various case laws on the subject makes it abundantly clear that the
guiding principle would be as to what is the intention of the
Legislature in using the word. This is the basic test. Thereafter its
(2006) 1 SCC 46
consequences; its impact or its substantive or procedural nature or
whether it is an act done by a private person or a public functionary;
these are all the factors that determine the nature of word as to whether
it is mandatory or directory.
69. The scheme of the Act has been discussed in the
preceding paragraphs. The final authority is the General Body of the
Society. Certain tasks are assigned to the committee of management.
The Registrar and other officers are to just supervise the activities of
the Society. They may intervene only when it is found or there are
reasons to believe that the Society is not working properly. In the
context thereof, if the Section 128 of the Act is seen, it categorically
makes out that the word "shall" cannot be treated as mandatory for the
following reasons:
(i) Section 128 is the power of Registrar to annul resolution
of Cooperative Society or cancel any order passed by any
officer of the cooperative society. Now what the proviso
requires is that before taking a decision, the Registrar
shall send the matter for reconsideration within a
maximum period of 15 days, but this section does not
provide the consequences. What if, after expiry of 15 days
also, the Society or its officer does not reconsider the
resolution or does not attend the direction of the Registrar
or does not communicate its decision taken after
reconsideration, to the Registrar. The consequences have
not been given under Section 128 of the Act. In all such
eventuality, the Registrar has to proceed to decide the
matter. It means that the 15 days time for reconsideration
has not much bearing. It is directory only. The intention
of the Legislature in non-defining of consequences,
supports it.
70. In view of the above, this Court is of the view that the
provision of Section 128 of the Act, in so far as it obligates the
Registrar to require the committee of management, etc. to reconsider,
the resolution is directory. It is not mandatory.
BYE-LAWS VERSUS LAWS
71. An argument has been raised on behalf of the respondent
no. 4 that Bye-laws are not laws. They cannot override the statutory
provision as provided under the Contract Act or the T.P. Act. Learned
counsel for the respondent no. 4 has placed reliance on the principle of
law as laid down in the case of B. Anjaneyulu (supra) on this point, in
which it was categorically held that Bye-laws are not laws. There may
not be any doubt to this proposition that Bye-laws are not the laws.
They are made under the statute. As stated, Section 7 of the Act
provides that a cooperative society may not be registered unless the
Registrar is satisfied that the proposed Bye-laws are consistent with the
provisions of the Act and the Rules. Cooperative Societies are
basically association of persons for some collective objectives. They
agree by the Bye-laws as to how to run the Society. It is nothing but an
agreement by which each member binds himself. They may definitely
be not against law.
72. In the case of Cooperative Central Bank Limited and
others v. Additional Industrial Tribunal, Andhra Pradesh and others 23,
the Hon'ble Supreme Court discussed the concept of Bye-laws to hold
that "The bye-laws that are contemplated by the Act can be merely
those which govern the internal management, business or
administration of a society. They may be binding between the
persons affected by them, but they do not have the force of a
statute. In respect of bye-laws laying down conditions of service of
the employees of a society, the bye-laws would be binding between
the society and the employees just in the same manner as
conditions of service laid down by contract between the parties. In
fact, after such bye-laws laying down the conditions of service are
made and any person enters the employment of a society, those
conditions of service will have to be treated as conditions accepted
by the employee when entering the service and will thus bind him
like conditions of service specifically forming part of the contract
of service."
73. In the case of State of U.P. and another v. C.O.D. Chheoki
Employees' Cooperative Society and others 24, the Hon'ble Supreme
Court very lucidly discussed the position of a member qua a society
and held as hereunder:-
(1969) 2 SCC 43
(1997) 3 SCC 681
"16. Thus, it is settled law that no citizen has a
fundamental right under Article 19(1)(c) to become a member of a
Cooperative Society. His right is governed by the provisions of the
statute. So, the right to become or to continue being a member of
the society is a statutory right. On fulfillment of the qualifications
prescribed to become a member and for being a member of the
society and on admission, he becomes a member. His being a
member of the society is subject to the operation of the Act, rules
and bye-laws applicable from time to time. A member of the
society has no independent right qua the society and it is the society
that is entitled to represent as the corporate aggregate. No
individual member is entitled to assail the constitutionality of the
provisions of the Act, rules and the bye-laws and is subject to its
operation. The stream cannot rise higher than the source."
(emphasis supplied)
74. In the case of Siddheshwar Sahakari Sakhar Karmhana
Ld. V. Commissioner of Income Tax and others 25, further the Hon'ble
Supreme Court discussed the scope of Bye-laws to hold that it is an
agreement entered between the members of a Society. The Hon'ble
Supreme Court held as hereunder:
"48. There is one more point to be adverted to.
Compulsory nature of the deposit has been stressed by the Revenue
and the High Court too as being obnoxious to the idea of a deposit.
It has been pointed out that the member had no option but to agree
for deduction on preordained terms and there could not be in law a
contract creating deposit. This contention, however, does not appeal
to us. A person by becoming the member of a cooperative society,
volunteers to abide by the bye-laws of the Society, the real object of
which is to provide for internal management of the Society
including rendering assistance to the members. There is an
authority for the proposition that the bye-laws of the cooperative
society constitute a contract between the Society represented by its
managing body and its constituents. This legal position has been
recognised in Hyderabad Karnataka Education Society v. Registrar
of Societies [(2000) 1 SCC 566] (vide paragraph 28). In Coop.
Central Bank Ltd. v. Addl. Industrial Tribunal [(1969) 2 SCC 43]
this Court held that the bye-laws of the Society framed by virtue of
the authority conferred by the Cooperative Societies Act were on a
par with articles of association of a company, which, it is well
settled, establish a contract between the company and its members
and between the members inter se (vide paragraph 14 in Naresh
Chandra Sanyal v. Calcutta Stock Exchange Assn. Ltd. [(1971) 1
SCC 50] ). That apart, the mere fact that the contract has to be
entered into in conformity with and subject to restrictions imposed
by law does not per se impinge on the consensual element in the
contract. "Compulsion of law is not coercion" and despite such
compulsion, "in the eye of law, the agreement is freely made", as
(2004) 12 SCC 1
pointed out in Andhra Sugars Ltd. v. State of A.P. [AIR 1968 SC
599 : (1968) 1 SCR 705]."
75. Each agreement most of the time restricts a person's
sphere of activities. Agreement may be lawful or unlawful. The objects
of the society are also defined. A person's individual rights are to be
examined vis-à-vis the object of the society as well as the Bye-laws.
Undoubtedly the Bye-laws cannot override statute; they cannot be
against any law of the land, but then it has to be remembered that
Bye-laws are nothing but agreement between the members of the
society. Their test has to be qua agreement as given under the Contract
Act. Which agreements are void and which are voidable, it is given in
the Contract Act. The Bye-laws may be tested to that extent only. If it
is not so, perhaps the objects of forming a cooperative society may
disappear very soon.
76. It may be illustrated by an example. Suppose a
cooperative society is formed for the purposes of constructing houses
for residential purpose of its members, land is purchased by the society
and allotted on lease to its member for raising constructions within a
time period stipulating the consequences if such construction is not
raised, within the given time. Now if it is construed that once allotted
the member can utilize the property the way he feels like and one of
the members starts raising some commercial kind of complex, open
gym, swimming pool for public purposes, hotels in such society, can
he do so. If it is allowed, the basic purpose of forming a cooperative
society gets defeated. If each member starts using the plot allotted to
him in his own manner, some for hotels, some for swimming pools,
some for open gym, without any control of the Society, perhaps it may
not be permitted. Of course it is equally true that the Bye-laws should
be in conformity with the ingredients of agreement as given under the
Contract Act. The objects should not be forbidden by law or to defeat
any provision of law or fraudulent or to cause injury to any other
person, etc.
77. There may be another illustration of an agreement.
Suppose A agrees to sell his property to B and subsequently declines to
sell the property to B on the ground that he is free to sale his property
to anyone and because he is getting higher price from C, he would sell
it to C. It cannot be permitted because A has bound himself to sell his
property to B. This is the position of Bye-laws. Therefore, undoubtedly
Bye-laws are not laws but they are conditions agreed by the persons
forming an association known as a cooperative society registered
under the Act. The Bye-laws may restrict transfer. The Bye-laws may
definitely restrict the use of land because the transfer, use, everything
is governed by the Bye-laws of the cooperative society with the
objectives. Bye-laws may also govern as to who should be inducted as
a member and the manner in which it should be inducted.
MEMBERSHIP OF RESPONDENT NO. 4.
78. It is an admitted case that on 03.11.1993 respondent no. 4
was inducted as a member of the Society by the then Administrator.
The petitioner has two objections to it:
(i) The General Body of the society in its meeting held on
18.7.1993 has unanimously passed a resolution, which
forbade enrolment of new members and stopped allotment of
plots to then until further decision of the General Body and
induction of respondent no. 4 was in defiance to such
resolution; and
(ii) In the Allahabad Petition, on 27.11.1992, the Allahabad High
Court had passed an interim order not to admit any new
member in the society.
79. In para 3 (bb), the details of resolution dated 18.07.1993
of the General Body of the Society has been stated by the petitioner. In
his counter affidavit, respondent no. 4, in reply to it has stated that the
resolution dated 18.07.1993 was not filed along with the writ petition
and further that "any administrative decision taken by the AGM
imposing a restriction on enrolling the member of the society is
absolutely uncalled for and is without jurisdiction being not in
consonance to the Bye-laws and not being in harmony with the
right of a person, who is qualified to be as a member of the
society".
80. The respondent no. 4 in his counter affidavit has stated
that the petitioner, in the Allahabad Petition was required to file an
affidavit of service annexing therewith acknowledgement of the order
failing which the order was to be ceased to be operative. It is stated
that such affidavit of service was never filed by the petitioner in
Allahabad Petition. A question answer form obtained from the
Allahabad High Court has been enclosed with the counter affidavit.
81. The respondent nos. 1 to 3 in their counter affidavit, in
para 21, did not utter a single word about the membership. What is
stated in this paragraph is that if a person has got property through a
proper deed, it cannot be resumed under the provision of Bye-laws of
the Society.
82. The resolution dated 18.07.1993 was though mentioned in
writ petition in para 3 (bb) and it is recorded that it is annexure 2-A,
but it appears that it was subsequently filed with the rejoinder affidavit
as Annexure RA-1 by the petitioner. But, the fact remains that the
petitioner in the writ petition at the very first instance has stated that
the General Body by its resolution dated 18.07.1993 had resolved that
till further orders new members be not enrolled and plots be not
allotted to them. How is it against law? Section 28 of the Act gives
complete power to the General Body of the cooperative societies to
deal with its matter. The General Body resolved that no member shall
be inducted.
83. It is also true that the Administrator may though induct
new members. But, had the Administrator cancelled the resolution of
the General Body dated 18.07.1993, there is no whisper on behalf of
the State. It may be noted here that the appellate authority, the
Registrar all are parties in this writ petition on behalf of whom counter
affidavit has been filed. They have not stated anything. It was a matter
of record, they could have verified it, but they have not done it. It
means that there was a resolution of the General Body of the Society
dated 18.07.1993 putting a ban on the induction of new members of
the Society. It was not followed by the Administrator. Why? What was
the necessity for the Administrator to induct respondent no. 4 as a
member, that too, without recalling or cancelling the resolution of the
General Body, which otherwise is the highest body of the Society in its
functioning. It makes the induction against law and impermissible. On
this count alone, the induction of respondent no. 4 as a Member of the
Society on 03.11.1993 was not permissible. This was against the
statute; against the Bye-laws.
84. The another question is the effect of order dated
27.11.1992 passed in the Allahabad Petition by the Allahabad High
Court. It is true that in the Allahabad Petition while putting a ban on
the induction of new members and giving other directions, the Court
had required the petitioner therein to file an affidavit of service, failing
which it was ordered that the order shall be ceased to be operative.
Affidavit of service was not filed, it is the case of respondent no. 4.
85. As stated, on 28.11.2002 (as conveyed vide Letter No.
691/Vidhi/Ni.Sa.Sa./2002 dated 28th November, 2002), the Registrar
also cancelled Resolution No. 4 of the petitioner by which membership
of the respondent no. 4 was cancelled. This order is Annexure 5 to the
rejoinder affidavit of the petitioner. In para 2 of page 2, at bottom
paragraph of this order, the Registrar has recorded that Secretary of the
Committee had filed a counter affidavit in the Allahabad Petition and
assured the Court to follow the directions given on 27.11.1992. In its
rejoinder affidavit, the petitioner has stated that, in fact, affidavit of
service was prepared by the then petitioner but due to death of his
counsel, it could not be filed on time.
86. Now there are two issues. In one of its order dated
28.11.2002 (as conveyed vide Letter No. 691/Vidhi/Ni.Sa.Sa./2002
dated 28th November, 2002), the Registrar has recorded that in the
Allahabad Petition, the Secretary of the Society had filed a counter
affidavit assuring the Court that all the directions given on 27.11.1992
were being followed. It means service was done on the Administrator
or on the Secretary of the Society. Now if proof of it has not been filed
in the Allahabad Petition, does it make any difference? Form and
substance are two things. Getting a thing done and getting its proof are
two distinct things. The order of Allahabad High Court dated
27.11.1992 was, in fact, complied with because as stated, a counter
affidavit was filed by the Secretary of the society in Allahabad Petition
indicating that the direction of the Court dated 27.11.1992 were being
followed. Now merely because a proof was not filed, it does not give
an authority to the Administrator to induct the member.
87. If on behalf of the Society, an assurance was given to the
Allahabad High Court that no new member will be inducted, it means
service was sufficient. It makes no difference under such facts and
circumstances that the proof thereof could not be filed before the
Court. The Allahabad Petition was, in fact, subsequently decided.
These facts were not brought to the notice of the Allahabad High Court
that the affidavit of service was prepared, but due to death of lawyer
the affidavit could not be filed or that, in fact, the order was served on
the Administrator and the Secretary of the Society. Had this fact been
brought to the notice of Allahabad High Court, perhaps without service
of notice the order would have remained in force. But, this Court holds
that despite the affidavit of service as such not having been filed before
the Allahabad High Court, the order dated 27.11.1992 was in force on
03.11.1993 because the Secretary of the Society himself had filed a
counter affidavit in the Allahabad Petition assuring the Court that the
directions dated 27.11.1992 were being followed.
88. This Court holds that on 03.11.1993, the order of the
Hon'ble High Court was in force, by which induction of new members
was stopped. Respondent no. 4 was inducted in defiance to the order of
Allahabad High Court. Therefore, the induction of respondent no. 4 on
this count also is illegal. He cannot be considered to have been
inducted as a member of the Society.
89. It has also been argued that any person can be a member
of the Society and Bye-laws cannot restrict it. Reference has been
made to Section 17 of the Act, which provides the eligibility criterion
to be a member for a Society. It is true that Section 17 of the Act
provides as to the persons, who may be the members of a cooperative
society, but each cooperative society has its own Bye-laws. Need not
be reiterated that cooperative societies are nothing but a group of
persons associated with common objectives. Any person cannot claim
to be a member of society. He has to fulfill the condition of the
Bye-laws. Therefore arguments given on this count does not have any
force.
90. An argument has also been advanced that a member can
be expelled only by the General Body meeting and not by the
Committee of Management. This argument has no force.
91. Rule 56 made under the Act provides as to who may be
removed as a member from the cooperative society. Rule 57 and 58
provide the procedure and it is the Committee of Management which
gives the notice to a member who is proposed to be removed from the
Society. On 24.8.2002 by resolution on point no. 4, the membership of
respondent no. 4 was removed. It can be done under the Bye-laws by
the Committee of Management and this is what is done in the matter.
92. In view of the forgoing discussions, this Court is of the
view that respondent no. 4 was wrongly, illegally and in defiance to
the order dated 27.11.1992 passed in the Allahabad Petition was
inducted as a member of the society on 03.11.1993. The induction of
respondent no. 4 as a member was also in defiance to the resolution of
the General Body of the Society dated 18.07.1993. He was rightly
removed from the membership of the society by the committee of
management on 24.08.2002, by a resolution on point no. 4.
THE POWER OF ATTORNEY AND RIGHTS OF THE
93. On behalf of respondent no. 4 various arguments have been
made on this point. On behalf of the petitioner, the limited argument is
that after the death of D.P. Nangia on 13.05.1998, the POA executed
by him did not remain effective and the transfer deed dated 23.07.2001
in favour of respondent no. 4 Ram Gopal is void because it has been
executed by Major (retd.) Naresh Gupta without any authority, without
prior permission of the Society, which is mandatory according to the
Bye-laws.
94. It is argued that the power of attorney was executed by
D.P. Nangia in favour of Major (retd.) Naresh Gupta on 07.01.1991 for
consideration, therefore, Major (retd.) Naresh Gupta has an interest in
the property and after the death of executant, the POA does not
extinguish in view of Section 202 of the Contract Act.
95. Section 202 of the Contract Act is as hereunder:
"202. Termination of agency, where agent has an interest
in subject-matter.--Where the agent has himself an
interest in the property which forms the subject-matter of
the agency, the agency cannot, in the absence of an express
contract, be terminated to the prejudice of such interest."
96. The POA has been filed by respondent no. 4 himself
along with his affidavit dated 17.06.2018. It nowhere records that D.P.
Nangia executed POA in favour of Major (retd.) Naresh Gupta for
consideration. There is no mention of any "consideration". It is simply
an authority to act on behalf of the member. Para 9 of this POA is as
hereunder:
"9. To take permission from the Authorities of Doon Valley
Officers Housing Society Ltd., Vasant Vihar, Mauza
Kanwali, Dehradun, in respect of the sale of the said plot of
land."
97. A document has to be read as it is. The respondent no. 4,
who is relying on this POA cannot be allowed to add something orally
in this POA. The POA as such has to be read. Therefore, to say that
Major (retd.) Naresh Gupta has any interest in the plot is without any
basis; meritless.
Effect of The Death of D.P. Nangia on 13.05.1998
98. D.P. Nangia was a member of the society. He had bind
himself by the Bye-laws. The restriction on a transfer as provided
under Bye-law 55 is self-imposed restriction. As stated, it is an
agreement between the members of the society. It is not against law.
This agreement is not void, hence, the restriction on transfer as
provided under Bye-law 55 is lawful. In the instant case, the transfer
by Major (retd.) Naresh Gupta was without any valid enforceable
authority and against the provisions of Bye-law 55, hence, it does not
give any legal right to the respondent no. 4 on the plot.
99. It has also been argued that the power of attorney has an
element of sale. This argument cannot be accepted at all. POA is
executed for various purposes.
100. In the case of Suraj Lamps & Industries (Pvt.) Ltd. vs.
State of Haryana and others 26, the Hon'ble High Court dealt with the
nature of POA in para 4 of the judgment, which is as hereunder:
"4. The earlier order dated 15-5-2009 [(2009) 7 SCC
363 : (2009) 3 SCC (Civ) 126] , noted the ill-effects of such
SA/GPA/will transactions (that is, generation of black
money, growth of land mafia and criminalisation of civil
disputes) as under: (SCC pp. 368-69, paras 19-21)
"19. Recourse to 'SA/GPA/will' transactions is taken in
regard to freehold properties, even when there is no bar or
prohibition regarding transfer or conveyance of such
property, by the following categories of persons:
(a) Vendors with imperfect title who cannot or do not want
to execute registered deeds of conveyance.
(b) Purchasers who want to invest undisclosed
wealth/income in immovable properties without any public
record of the transactions. The process enables them to hold
any number of properties without disclosing them as assets
held.
(c) Purchasers who want to avoid the payment of stamp duty
and registration charges either deliberately or on wrong
advice. Persons who deal in real estate resort to these
methods to avoid multiple stamp duties/registration fees so
as to increase their profit margin.
20. Whatever be the intention, the consequences of
SA/GPA/will transactions are disturbing and far-reaching,
adversely affecting the economy, civil society and law and
order. Firstly, it enables large-scale evasion of income tax,
wealth tax, stamp duty and registration fees thereby denying
the benefit of such revenue to the Government and the
public. Secondly, such transactions enable persons with
undisclosed wealth/income to invest their black money and
also earn profit/income, thereby encouraging circulation of
black money and corruption.
21. This kind of transactions have disastrous collateral
effects also. For example, when the market value increases,
many vendors (who effected power of attorney sales without
(2012) 1 SCC 656
registration) are tempted to resell the property taking
advantage of the fact that there is no registered instrument
or record in any public office thereby cheating the
purchaser. When the purchaser under such 'power-of-
attorney sales' comes to know about the vendor's action, he
invariably tries to take the help of musclemen to 'sort out'
the issue and protect his rights. On the other hand, real
estate mafia many a time purchase properties which are
already subject to power-of-attorney sale and then threaten
the previous 'power-of-attorney sale' purchasers from
asserting their rights. Either way, such power-of-attorney
sales indirectly lead to growth of real estate mafia and
criminalisation of real estate transactions."
It also makes title verification and certification of title,
which is an integral part of orderly conduct of transactions
relating to immovable property, difficult, if not impossible,
giving nightmares to bona fide purchasers wanting to own a
property with an assurance of good and marketable title."
101. In the case of Suraj Lamps & Industries (supra), the
Hon'ble Supreme Court categorically declared that "we have merely
drawn attention to and reiterated the well-settled legal position
that SA/GPA/WILL transactions are not transfers or sales and
that such transaction cannot be treated as completed transfers of
convenience".
102. The POA did not give any right to Major (retd.) Naresh
Gupta. Major (retd.) Naresh Gupta did not have any interest in the plot.
103. An argument has been raised that the respondent no. 4 is a
bona fide purchaser, therefore, his rights are reserved under Section
53-A of the T.P. Act. This argument is also much misconceived.
104. Section 53-A of the T.P. Act comes into play in cases of
transfer for consideration of immovable property. It is based on the
principle of part performance. In the instant case, D.P. Nangia never
did transfer of plot to Major (retd.) Naresh Gupta. It is not a transfer
for consideration. Merely a POA was executed by D.P. Nangia in
favour of Major (retd.) Naresh Gupta 07.01.1991. Its nature remains as
a POA without any interest, without any consideration. An agency was
created by D.P. Nangia and that agency had come to an end after the
death of the principal, namely, D.P. Nangia, in view of Section 201 of
the Contract Act, which is as hereunder:
"201. Termination of agency.--An agency is
terminated by the principal revoking his authority; or by the
agent renouncing the business of the agency; or by the
business of the agency being completed; or by either the
principal or agent dying or becoming of unsound mind; or
by the principal being adjudicated an insolvent under the
provisions of any Act for the time being in force for the
relief of insolvent debtors."
105. Therefore, this Court is of the considered view that on the
death of D.P. Nangia on 13.05.1998, the power of attorney had lost its
utility. The agency which was created by D.P. Nangia with Major
(retd.) Naresh Gupta by virtue of execution of power of attorney on
07.01.1991 came to an end on 13.05.1998 when D.P. Nangia died. Any
transaction done thereafter at the instance of POA has no force in the
eye of law. Any document executed at the strength of POA post
13.05.1998 is void ab initio; is non est. It does not transfer any rights
in favour of respondent no. 4 Ram Gopal.
106. Arguments have also been advanced that by virtue of a
registered document, the deed has been transferred in favour of
respondent no. 4, hence unless the deed is cancelled, the rights have
been vested with respondent no. 4. This argument is also
misconceived.
107. Whatever rights the respondent no. 4 claims, he claims
through Major (retd.) Naresh Gupta, who allegedly executed the
transfer deed in favour of respondent no. 4 at the strength of POA
dated 07.01.1991. But, as stated, power of attorney had lost its utility
on 13.05.1998 when D.P. Nangia had died. Therefore, post
13.05.1998, any transaction, as stated, done at the strength of POA is
null, void and non-est. Therefore, respondent no. 4 does not derive
any right from any such deed.
WHETHER THE IMPUGNED ORDER IS BAD BEAUSE THE
AUTHORITY, WHO PASSED THE ORDER WAS ALSO HOLDING THE
CHARGE OF THE REGISTRAR AT THE RELEVANT TIME
108. In fact, in all the three petitions, the petitioner has stated
that when the appeal was being heard, they moved an application
requesting the officer not to decide the appeal as he was holding the
dual charge - (i) charge of Registrar as well as (ii) charge of Secretary,
Cooperative Societies. But, it is the case of the petitioner that the
appellate authority failed to consider that he was hearing an appeal
against the order passed by his own office.
109. In all the three petitions, initially the prayer was made that
while quashing the impugned orders, the matter may be remanded so
that it may be heard by a competent, unbiased and able officer. During
the course of arguments, learned counsel for the petitioner would
submit that he does not press for remand of the matter. He restricts his
prayer for quashing the impugned order on the grounds as advanced
during the course of arguments.
110. It is true that one of the basic principles of law is that no
one should be a judge in his own cause. It is also true that a person
may not hear an appeal against an order passed by him. But, in the
instant case, the orders which were heard by the Secretary,
Cooperative Societies, were though passed by the Registrar, but they
were not passed by the appellate authority, who passed the impugned
orders. It makes no difference that at the relevant time the Secretary,
Cooperative Societies was also having the charge of the Registrar. In
the administration, it happens quite often that an officer may hold two
or three or may be more than that charges, vertically as well as
horizontally. In such eventuality, though such officer may not hear the
appeal against an order passed by him in a different capacity, but if he
hears an appeal against an order of an authority, of which charge he
was holding, but by a different person, it cannot be said that such
hearing or decision is bad or vitiated by any principle of law.
Therefore, the objection to the hearing of the appeal by the appellate
authority as raised by the petitioner, in fact, had no basis.
RESUMPTION OF PLOT
111. On behalf of the respondent no. 4, it is argued that the plot
cannot be resumed by the Society because a valuable right had already
vested in the respondent no. 4. He got the plot by virtue of a transfer
deed; he is an absolute owner of the plot.
112. This Court has already held that the respondent no. 4 did
not derive any right or interest whatsoever in the plot because the
transaction post death of D.P. Nangia was not permissible under law
on the basis of the POA executed by D. P. Nangia.
113. It has been argued on behalf of the respondent no. 4 that
right to property cannot be governed by Bye-laws and any Bye-law,
which permits resumption of plot cannot be held valid.
114. It may be noted that Bye-laws 50 and 51 of the Society,
inter alia, provide that a member who is allotted a plot shall complete
construction of the house within three years from the date of allotment.
This period of three years may be extended by the Registrar, but it also
provides that the extended period may not be more than three years.
Bye-law 51 gives the consequence if within the period of three years
construction is not made. According to Bye-law 51, in case
construction is not made within three years, the committee of
management shall have the authority to resume the plot.
115. The plot was initially allotted to R.S. Chug, who had
transferred it to D.P. Nangia on 28.09.1984. According to the
petitioner, D.P. Nangia had submitted an affidavit on 26.06.1984 that
he will construct the house within two years, but he did not construct
the house even after ten years. The Society gave him 10 notices
between 28.02.1992 and 2002. D.P Nangia executed the POA in
favour of Major (retd.) Naresh Gupta on 07.01.1991, but D.P. Nangia
died on 13.05.1998. In his life time, D.P. Nangia did not construct the
house. After the death of D.P. Nangia, respondent no. 4 got the plot in
his name at the strength of POA from Major (retd.) Naresh Gupta. This
Court has already held that the POA had lost its utility on 13.05.1998
when D.P. Nangia had died and after 13.05.1998, any transaction done
at the strength of POA is null, void and non-est. Therefore, respondent
no. 4 Ram Gopal does not derive any right from any deed executed
post 13.05.1998.
116. This Court has also held that, in fact, Bye-laws are not
law. They are agreement between the members of a cooperative
society. D.P. Nangia was a member of the society. He had bind himself
by the Bye-laws. The restriction on transfer or regulation with regard
to construction of houses on the plot allotted, under Bye-laws 50 and
51 is self-imposed restriction. Members of the society may restrict
their activities in order to fulfill the objectives of the society. These
agreements should not be against law. If it is so, it becomes void. But,
these self-imposed restrictions as enumerated under Bye-laws 50 and
51 are not void. They are not against any law. They are, in fact, in
furtherance of the objects of the society. Therefore, it cannot be said
that the power of resumption by the committee of management of the
society is bad in the eye of law. This is not bad. This is an agreement
between the members of the society, which has force of law. By
resuming the plot, the petitioner did not commit any mistake. The
resumption of plot is in accordance with law.
CONCLUSION
117. In view of the foregoing discussion, this Court is of the
view that the appellate authority committed an error of law in
upholding the orders of the Registrar. The orders of the Registrar are
not in accordance with law. Therefore, all the three writ petitions
deserve to be allowed.
118. Writ Petition (M/S) No. 1100 of 2015 is allowed. The
impugned order dated 18.04.2015, as well as, the order of the Registrar
dated 28.11.2002 (conveyed vide Letter No. 693/Vidhi Ni.Sa.Sa./2002
dated 28.11.2002) is set aside.
119. Writ Petition (M/S) No. 1101 of 2015 is allowed. The
impugned order dated 18.04.2015, as well as, the order of the Registrar
dated 27.11.2002 (conveyed vide Letter No. 689/Vidhi/Ni.Sa.Sa./2002
dated 27.11.2002) is set aside.
120. Writ Petition (M/S) No. 1102 of 2015 is allowed. The
impugned order dated 18.04.2015, as well as, the order of the Registrar
dated 28.11.2002 (conveyed vide Letter No. 692/Vidhi/Ni.Sa.Sa./2002
dated 28.11.2002) is set aside.
(Ravindra Maithani, J.)
Avneet/ 05.05.2021
