Delhi High Court
Gurbachan Singh vs Rehabilitation Ministry Employees ... on 11 May, 1990
Equivalent citations: 45(1991)DLT689
JUDGMENT V.B. Bansal, J.
(1) Ourbachan Singh has filed this writ petition under Article 226 of the Constitution of India for the issuance of a writ of certiorari or any other writ or directions thereby quashing the order dated May 17, 1989 of Lieutenant Governor, Delhi in case No. 20/85-CA. He has further prayed for an appropriate direction declaring that the order dated January 9, 1985 by Deputy Registrar, Delhi in Case No. F-DR/Arb./Coop./64 is valid. He has further prayed for a writ of mandamus or any other appropriate writ or direction to respondent No. 2 to continue and proceed with the arbitration proceedings.
(2) It would be necessary to narrate the relevant facts leading to the filing of this petition. Rehabilitation Ministry Employees Cooperative House Building Society Limited (hereinafter to be referred to as the 'Society') respondent no. 1 was formed for the benefits of the employees of the Rehabilitation Ministry. One of the main objects of the Society was to acquire either through outright purchase or on lease land for the construction of houses for giving to the members or for allotment to its members.
(3) The petitioner was an employee of the Ministry of Rehabilitation and was inducted as a member of the said Society. The petitioner deposited a sum of Rs. 5.00 as admission fee and Rs. 1600.00 as share money vide receipt dated June 7,1966. He moved an application dated June 7, 1966 along with a covering letter of even date and an affidavit for being enrolled as a member of the Society. After the approval of the request of the petitioner for being enrolled as a member, he was issued a regular stamped receipt dated October 17, 1966 for a sum of Rs. 1600.00 towards the first Installment of the purchase of land. The General Body of this Society held a meeting on July 8, 1970 in which a decision was taken that all persons who had made applications for membership of the Society up to December 31, 1969 will be admitted as members of the Society. The petitioner was posted outside Delhi and so was not in a position to remain in constant touch with the Society. The membership of the petitioner was cancelled by the Administrator of the Society vide order dated July 1, 1976 for no valid reasons and without giving any show-cause notice to the petitioner.
(4) The petitioner came to know that the Society will be allotting plots only to those persons who are residents of Delhi and so vide letter dated June 21, 198 3 he requested the Society for transfer of his share money to the account of Shri O.P. Aggarwal, another member. The Society, however, declined to do so and rather sent a cheque for Rs. 1600.00 in favor of the petitioner. In the meantime, Gurbachan Singh, petitioner came to know that there was no rule as such for the allotment of plots only to those members who were residents of Delhi and so he did not accept the cheque for the refund of a sum of Rs. 1600.00 deposited by him earlier with the Society.
(5) It is the case of the petitioner that the Society was now bent upon cancelling his membership on account of which he moved an application in the office of the Deputy Registrar (Arbitration) Cooperative Society, Old Sectt., New Delhi. This application was decided by the Deputy Registrar (Arbitration) vide order dated January 5, 1989 and the disputes between the parties were referred to Major General H.N. Shivgar. The Arbitrator entered reference and proceedings were adjourned at the request of respondent No. 1. In the meantime, respondent no. 1 Society moved a revision petition before Lieutenant Governor, Delhi under Section 80 of the Delhi Cooperative Societies Act (hereinafter to be referred to as the 'Act'). The order of the Deputy Registrar had been set aside by the Lieutenant Governor, Delhi vide the impugned order dated May 17,1985.
(6) This writ petition has been contested by respondent no. 1 Society and It has, inter alia, been pleaded that the petitioner had never been admitted as a member of the Society nor had he ever moved an application in this regard. It has further been pleaded that on a request by the petitioner the amount of Rs. 1600.00 deposited by him has since been refunded to him and so he has no locus stand to claim to be a member. It has also been pleaded the vide resolution dated July 8, 1970 the General Body of respondent no. 1 had taken a decision that the Society may enrol all the person who had applied for membership and made payments before December 31, 1969 but no such decision had been taken In respect of the petitioner nor had he been issued any share certificate. It is further pleaded that the Deputy Registrar (Arbitration) has gone beyond his powers and in the absence of any material to show that the petitioner was a member of the Society, there was no question of referring any disputes between him and Society to arbitration. It has, thus, been pleaded that the Lieutenant Governor has rightly set aside the order of Deputy Registrar (Arbitration) and a prayer has, thus, been made for the dismissal of the petition.
(7) We have heard Shri S.P. Mahana learned Counsel for the petitioner and Shri Rakesh Munjal learned Counsel for the respondent/society and we have also gone through the records of the case.
(8) Learned Counsel for the petitioner has submitted that the petitioner has been an employee of the Ministry of Rehabilitation and had deposited Rs. 1605.00 with respondent no. 1 on June 7, 1966 regarding which receipt No. 325 of even date was issued. He has also submitted that an application addressed to the Society was also bandied over to Sbri Lachman Das. Jt has further been submitted that a regular receipt dated October 17, 1966 was issued under the signatures of the President and another member of the Society.
(9) The deposit of the aforesaid amounts by the petitioner is not disputed by learned Counsel for the respondent. It has, however, been sub- mitted by learned Counsel of respondent no. 1 that no application was given b) the petitioner on June 7, 1966 as claimed by him. It has also been submitted that the petitioner has, in fact, forged the signatures of Lachman Das on the letter. It is pertinent to note that the objection with regard to the signature of Lachhman Das being forged has been raised for the first time in this Court. No such objection was taken during the proceedings before the Deputy Registrar (Arbitration) for referring the disputes between the parties to the Arbitrator. The petitioner has produced a noting from the Society indicating that Ourbachan Singh petitioner had deposited the share money of Rs. 100.00 and Rs. 1500.00 towards the cost of land in May 1966 but his case was rejected by the Administrator on July 1, 1976 on the ground that "his file is blank, it neither contains application for membership nor an affidavit". We may, however, note that in the receipt dated October 17, 1966 the father's name and the permanent address of the petitioner were recorded. Consequently, we had pointedly enquired from learned Counsel for respondent no. 1 to indicate how and wherefrom the particulars of the petitioner were noted in the receipt if no application and affidavit were submitted by the petitioner, but he had no answer. In these circumstances, it appears to us that there must have been some application given along with the cheque by the petitioner and the address must have been noted from the same.
(10) The first and foremost question to be considered is whether the petitioner has been a member of the Society or not. Section 2(k) of the Act provides that member means a person admitted to membership after registration of a Society in accordance with the Act, the Rules and the Bye-laws. Rule 24 of the Delhi Cooperative Societies Rules, 1973 (hereinafter to be referred to as the Rules) provides for conditions to be complied with for admission to membership. It has been provided under this Rule that a person desirous of becoming a member of a Cooperative Society has to move an application in writing along with the declaration on oath that he/she is not a member of any other cooperative society having similar objects and his application is approved by the Committee in pursuance of the powers conferred on it and subject to such resolution as the General Body may in pursuance of the powers conferred in this behalf from time to time pass and that he had fulfillled all the coalitions laid down in the Act, the Rules and the Bye-laws. Clause (5) of the Bye-laws of the Society provides that no person shall be a member unless he is an employee of the Ministry of Rehabilitation, his written application for membership has been approved by the majority of the managing committee, he or his wife or any of his dependants does not own a plot or dwelling house in Delhi, and he is not a member of any other Cooperative House Building Society. It is also provided that an admission fee of Rs, 5.00 shall be paid which is non-refundable and that if be has paid the admission fee and share money after the acceptance of his application be shall be deemed to have acquired all the rights and incur all responsibilities and liabilities of members of the Society.
(11) As already discussed the Society issued receipt dated June 7, 1966 in which there was a note that "acceptance of money does not mean that the payee has been enrolled as the member of the Society". However, receipt dated October 17, 1966 is a regular stamped receipt issued under the signatures of the President and another member of the Society without any note as given in the receipt dated June 7, 1966. Clause (8) of the Bye-laws of the Society provides as to when a prison would cease to be a member of the Society. One such condition is "for lack of confirmation of membership as per Bye-laws 5(iv)". It is the admitted case of the parties that the case of the petitioner was not put up before the General Body of respondent no. 1 for approval. In fact, the case of the petitioner was rejected by the Administrator of the Society on July 1, 1976 on account of his file being blank having no papers at all. It is difficult for us to believe that there was no application at all by the petitioner for becoming a member of the Society. In any case, the plea of the petitioner has been that he had submitted an application and an affidavit along with a covering letter and cheque for Rs. 1605.00 on June 7, 1966 and obtained the signatures of Lachman Singh which fact is being denied by the Society pleading that the covering letter has a forged signature cf Lachman Dass. In any case, this is a matter which requires investigation and cannot be decided in this writ petition. In para 10(g) of the reply dated March 31, 1987 respondent no. 1 has also pleaded that the letter dated June 7, 1966 is a forged document and needs investigation.
(12) Learned Counsel for the respondent has submitted that the name of Gurbachan Singh petitioner was not included in the register of members which would clearly indicate that he is not a member of the Society. Sec. 4U of the Act provides that any register or list of members or shares kept by any Cooperative Society shall be prima-facie evidence of the date on which a person entered in such register or list became a member and the date on which any such person ceased to be a member. However, the absence of the name of a particular person from such register or lilt would not be conclusive proof to establish that the person whose name is not mentioned therein, is not a member. As already referred to above the Society had received a sum of Rs. 5.00 as admission fee, Rs. 100.00 as share money and Rs. 1500.00 towards the cost of land from the petitioner as far back as June 1966. The submission of learned Counsel for the petitioner has been that there are many members of the Society who have not been issued share certificates. Learned Counsel for respondent no. 1 was unable to controvert this submission of learned Counsel for the petitioner. In these circumstances, the mere fact that the petitioner is not having any share certificate or that his name is not mentioned in the register of members cannot be conclusive proof of his not being a member.
(13) Another submission of learned Counsel for the respondent has been that the Deputy Registrar (Arbitration) has, in fact, decided the point raised by the petitioner and there was nothing left for the Arbitrator to decide in the matter. In this way, he has submitted, that the Deputy Registrar (Arbitration) had gone beyond his powers to refer the matter to the Arbitrator when in fact there was no dispute at all, the petitioner not being a member of the Society. There is no doubt that In the concluding paragraph of his order the Deputy Registrar (Arb.) has stated that the petitioner was a bona fide member of the Cooperative Society and has not been expelled from membership under the provisions of the Act, Rules and Bye-laws. However, reading the order as a whole, we are of the view that the controversy between the parties as to whether the petitioner had moved any application along with the requisite documents for being enrolled as a member of the Society has been left open for Arbitrator to decide. It is open to the parties to lead evidence before the Arbitrator in this regard but prima facie the evidence shows that the petitioner was a member of the Society.
(14) Learned Counsel for respondent no. 1 has submitted that the amount deposited by the petitioner was refunded to him at his request and therefore he cannot claim to be a member and consequently no dispute could have been referred to the Arbitrator. In support of this submission. Counsel has referred to a copy of the application moved by Ourbachan Singh staling therein that he had deposited a sum of Rs. 1605.00 with the Society and that no plot has been allotted to him and requested that the said money may be adjusted in the account of Shri 0m Parkash Aggarval. The request of the petitioner foi adjustment of the amount was declined and a cheque for Rs. 1600.00 was sent to him on June 23,1983. Admittedly, the petitioner did not get this cheque encashed. It is, thus, apparent that the amount deposited by the petitioner was not adjusted in the account of Shri 0m Parkash Aggarwal as prayed for by him. In these circumstances, we are of the view that no adverse inference can be drawn against the petitioner on account of his moving an application for adjustment of the amount and that he would not cease to be a member of the Society merely on account on his having moved this application.
(15) Another submission of learned Counsel for respondent no. 1 has been that the application moved by the petitioner before the Deputy Registrar (Arbitration) was beyond limitation in as much as his plea for being made a member of the Society was rejected on July 1, 1976 and the application for arbitration was moved in 1983-84, i.e. much beyond the period of six years. It is the admitted case of the parties, that no intimation about the order dated June 1, 1976 was scoot to the petitioner, in spite of the fact that his address could have been ascertained from the receipt dated October 17, 1966 According to respondent No. 1's Counsel a notice was given in the Times of India, Delhi and Nav Bharat Times, Delhi on the basis of which the petitioner moved an application in 1983 for refund of the amount. If that is considered to be an information to the petitioner then the application for arbitration has been moved well within the period of six years ai provided under Scc. 60(4) of the Act.
(16) In view of the aforesaid discussion, the writ petition is allowed. The impugned order dated May 17, 1985 of the Lieutenant Governor is hereby set aside. The learned Arbitrator should proceed further in the matter and decide whether the petitioner had moved an application along with the requisite documents including an affidavit for being enrolled as a member of the Society and whether he can be treated as a valid member of the Society. The petitioner shall also be entitled to costs from respondent no. 1 which we assess at Rs. 2500.00 .