Unknown vs State Of Uttarakhand Through Secretary on 5 May, 2021

[Cites 61, Cited by 0]

Uttarakhand High Court

Unknown vs State Of Uttarakhand Through Secretary on 5 May, 2021

Bench: Ravindra Maithani

                                                                             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 4 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 6 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 27.11.1992, by virtue of resolution No. 4 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 7 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. 8 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 9 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. 10 689/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 11 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 12 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 14 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 15 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 16 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 17 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."

ON BEHALF OF THE RESPONDENT NO. 4

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, 1 (1994) 6 SCC 651 2 (2014) 8 SCC 661 21 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 22 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. 23

(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....". 3 AIR 2003 Guj 294 4 AIR 2003 SC 2686 5 (2016) 10 SCC 767 6 2008(3) UC 1896 7 1995(1) ALT 131 8 (2014) 6 SCC 1 9 ILR (2012) V Delhi 48 RFA 24

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 26 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 27 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 10 AIR 2001 SC 2552 28

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 29

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 11 (2017) 13 SCC 621 30 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 31 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 12 AIR 1954 SC 440 13 (1924) 1 (KB) 171 at 205 33 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 14 (1969) 2 SCC 262 34 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) 15 (2019) 10 SCC 695 16 AIR 1955 SC 233 35 "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 36 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 38 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 39 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) 42

(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) 43

(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 44 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 45 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 17 (2011) 9 SCC 286 46 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 18 (2015) 8 SCC 1 47 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 49 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 50 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 51 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 19 AIR 1961 SC 751 52 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 21 (2003) 3 SCC 433 53 "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 22 (2006) 1 SCC 46 54 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 55 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 56 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 24 (1997) 3 SCC 681 57 "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 25 (2004) 12 SCC 1 58 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 59 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 61 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 62 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 63 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. 64

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 65 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 66 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 RESPONDENT NO. 4

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. 67 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. 68

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 26 (2012) 1 SCC 656 69 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 70 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 71 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 72 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 73 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 74 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 75 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

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Uttarakhand High Court