Delhi High Court
Nehru Coop. G/H Society Ltd. vs Govt. Of Nct Of Delhi And Anr. on 7 September, 2006
Author: Mukundakam Sharma
Bench: Mukundakam Sharma, Hima Kohli
JUDGMENT Mukundakam Sharma, J.
1. In this writ petition, what is challenged before us, is the order of the Registrar, Cooperative Societies communicated by the Assistant Registrar on 22nd July, 2004 By the said communication, the Registrar, Cooperative Societies informed the President and the Secretary of the Nehru Cooperative Group Housing Society Limited, the petitioner herein, that the request of the society for enrollment of new members in the society cannot be acceded to as the enrollments have been made without observing the provisions of Rule 24(2) of the Delhi Cooperative Societies Rules, 1973.
2. In this writ petition, pleadings are complete and the matter was listed yesterday for arguments. When we heard Mr. Arun Maitri, Advocate who appeared for the petitioner, he submitted before us that the aforesaid communication which is issued by the Registrar, Cooperative Societies is illegal and without jurisdiction and, therefore, the same is required to be quashed. He submitted that 9 persons who have been inducted as new members by the petitioner society could have been so inducted as no prior approval of the Registrar, Cooperative Societies was necessary and no advertisement was required to be issued for the induction of new members inasmuch as the operation of the provisions of Rule 24(2) of the Cooperative Societies Rules were stayed by this Court in some other proceedings. He submitted before us that Rule 24(2) was not enforced by the Registrar till 2.4.2004 and it was made applicable only w.e.f. 2.4.2004 It was further submitted that the petitioner society enrolled all 9 persons prior to 2.4.2004 and, therefore, the aforesaid communication dated 22.7.2004 is bad in law and is required to be struck off.
3. Although the Registrar, Cooperative Societies had filed a counter affidavit before us, yet we desired that the Registrar, Cooperative Societies should be personally present in the Court to assist the court on the pleas raised by the counsel for the petitioner yesterday, particularly, with regard to the statutory provisions of Rule 24(2), the operation of which was stayed by the court and consequently, whether or not the cooperative societies has the power to induct the new members and to allot flat to them without obtaining prior approval from the Registrar, Cooperative Societies in the interregnum period.
4. After hearing the counsel for the parties at length yesterday, we issued a direction for personal presence of the Registrar, Cooperative Societies and the matter was adjourned for hearing today. In the meantime counsel for the petitioner was also directed to obtain instructions from his clients as to what was the vacancy position in the society as on date. When the matter is called out today for hearing for the second time, neither is the counsel for the petitioner present in court nor is the petitioner society represented before us. However, the Registrar, Cooperative Societies is present. We have heard him on the issues raised before us by the counsel for the petitioner yesterday.
5. Having heard the counsel for the petitioner as also counsel for the respondent and the Registrar, Cooperative Societies, and upon going through the records, we find that in CW 4130/1997, an order was passed on 30.9.1997, whereby notice in the writ petition was issued by this Court. While doing so, an interim order was passed staying the operation of the Rule 24(2) of the Delhi Cooperative Societies Rules, 1973 as amended by Notification dated 6th August, 1997. Similar interim orders staying the operation of the amended Rule 24(2) were also passed in CW 4143/1997 on 3.10.1997. The aforesaid interim order which was passed in CW 4130/1997 was also made absolute by a subsequent order passed in the said writ petition on 20.8.1998. In CW 4143/97 it was ordered on 3.10.97 that the said writ petition had to be heard along with CW 4130/97. CW 4143/1997 was listed on 8.1.2003 along with CW Nos.4209/97, 3430/98, 5683/98 and 1651/97. It is, however, brought to our notice that while the aforesaid writ petitions were listed for consideration on 8.1.2003, CW 4130/97 was not listed. The Division Bench of this Court by order dated 8.1.2003 disposed of the aforesaid writ petitions which were listed before it on the said date.
6. A bare perusal of the aforesaid order dated 8.1.2003 passed by this Court would indicate that in the said writ petitions, notice was taken of the provisions of Rule 34(A) and Rule 36(A), but no observation whatsoever was made with regard to Rule 24(2). It is, therefore, clear and apparent that when the writ petitions were disposed of, the challenge made to Rule 24(2) also stood disposed of without returning a ruling in favor of the petitioner that the said provision was liable to be struck down. The court did not hold that Rule 24(2) of the Delhi Cooperative Societies Rules is in any manner ultra vires to the Constitution of India. That being the decision, and the stay order having merged with the final order passed while disposing of the writ petition, it is manifest that there was no stay operating in so far as the provisions of Rule 24(2) of the Delhi Cooperative Societies Rules are concerned.
7. Immediately, after passing of the said order, so far as these writ petitions are concerned, the said Rule 24(2) otherwise became operative and applicable with immediate force as in our considered opinion, a rule could be said to be invalid only when the same is declared to be invalid by an appropriate court. No declaration was made at any point of time by any court that Rule 24(2) is ultra vires or void. Although, CW 4130/1997 was pending in this Court, the interim order which was granted therein would be deemed to be operative only for the purpose of that case and not for any other case. It may also be noted that the said case was also later on dismissed in default on 7.7.2005. While dismissing the said writ petition on 7.7.2005, it was observed that the connected matter had already been disposed of.
8. Be that as it may, the connected writ petitions were disposed of on 8.1.2003. The interim order which was passed by this Court staying the operation of the Rule 24(2) also lapsed with the disposal of the writ petition. A notice dated 2.4.2004 was also issued by the Registrar, Cooperative Societies giving a public notice that the said order passed in respect of Rule 24(2) stands vacated and that the provision of Rule 24(2) is operative. The notice dated 2.4.2004 was also circulated to all the group housing and house building societies by the Registrar, Cooperative Societies. The stay having been vacated, it has to be inevitably assumed that the provision of Rule 24(2) was operative and existed in the statute book and, therefore, any action taken by the society for the induction of new members has to be in conformity with the prescribed criteria laid down in the aforesaid provision. If any person is inducted as a member of the cooperative society by the managing committee of the society in violation of the aforesaid rules, rightly and necessarily the said membership is to be held as void ab initio for non-compliance with the mandate of the provisions of Rule 24 (2) of the Rules. We, therefore, find that the action taken by the Registrar, Cooperative Societies in intimating the managing committee of the society there there could be no enrolment of the new members of the society without observing the provisions of Rule 24(2), shall have to be held as well justified, valid and legal.
9. On going through the records, we find that the persons, who were inducted by the petitioner society, and regarding whom no approval was granted by the Registrar, Cooperative Societies, are seven in numbers. Their respective dates of application, dates of the resolution of the managing committee and dates of the receipt of the share money are reflected below:
Sr. No. Name of Member Date of application Date of M.C. Date of receipt
of SM, etc.
1. Smt. Pomaya Mena 14.11.03 15.11.03 18.11.03
2. Sh. Santosh Kumar 07.12.03 10.12.03 03.1.04
3. Col. R.K. Rajput 10.1.04 12.1.04 14.1.04
4. Sanjay Chakrawarti 10.1.04 12.1.04 9.2.04
5. Samson Ngemu 12.2.04 17.2.04 18.2.04
6. Wangcha Rajkumar 14.2.04 17.2.204 25.2.04
7. S.S. Chaudhary and 16.2.04 17.2.04 4.3.04
Mrs. Kuljit Kaur
10. A reading of the same indicates that they were inducted as members by receiving the share money only after 18th November, 2003 and, therefore, they could not have been inducted as members of the cooperative society without following the procedure as prescribed in Rule 24(2) of the Delhi Cooperative Societies Rules. We, therefore, find no merit in this writ petition and the same is dismissed.
11. We find from the records, which are placed before us as also from the submissions made before us that despite the fact that the connected writ petitions referred to hereinabove were disposed of on 8.1.2003, and the interim orders necessarily stood vacated, the same having merged with the final order passed, the then Registrar, Cooperative Societies did not issue any notice/circular intimating that the aforesaid order which was passed in respect of the writ petitions, stood vacated. It has been stated before us by the Registrar, Cooperative Societies, Shri Satya Gopal, that the then Registrar, Cooperative Societies held the post up to 30.6.2004, and that despite the order dated 8.1.2003, approval was continued to be granted for enrollment of new members in some cooperative societies without adhering to the procedure as prescribed under the provisions of Rule 24(2) of the Delhi Cooperative Societies Rules. Necessary clarification was issued only on 2.4.2004 and the Rule was sought to be enforced only after 1.7.2004, when the present Registrar, Cooperative Societies assumed office.
12. No one has pointed out hereinbefore that the aforesaid order was operative only so far as the writ petitions are concerned. We have held that a provision in the statute cannot be declared to be void in general terms unless the same is so declared to be void or invalid by an appropriate court. In any case, it would be assumed that the aforesaid provision was operative at least w.e.f. 8.1.2003. In these circumstances and in the light of the facts which have emerged today, we deem it appropriate to direct that the CBI/Crime Branch, whosoever is making investigations in some of the cooperative societies matters, should also investigate as to why and how no action was taken w.e.f. 8.1.2003 to 1.7.2004 for giving effect to the provisions of Rule 24(2) of the Delhi Cooperative Societies Rules. We also desire that CBI/Crime Branch and the Registrar, Cooperative Societies shall also enquire into and ascertain as how many and who are the societies who inducted new members into the society after 8.1.2003 without adhering to provisions of Rule 24(2) and also how many cooperative societies are involved and what is the nexus, if any, between the concerned authorities, the cooperative societies, and/or persons inducted without giving effect to the provisions of Rule 24(2) of the Rules. A status report in this regard be filed before us within two months.
13. To come up on 27th November, 2006.
14. Registry to forward a copy of this order to the CBI/Crime Branch immediately. Order be also granted dusty to the Registrar, Cooperative Societies through counsel for intimating the CBI/Crime Branch.