Delhi High Court
Swaraj Soni vs Rehabilitation Ministry Employees ... on 11 May, 1990
Equivalent citations: 42(1990)DLT261
JUDGMENT V.B. Bansal, J.
(1) By this petition under Articles 226 and 227 of the Constitution of India Smt. Swaraj Soni has prayed for a writ. of certiorari to quash the show cause notice dated October 15, 1987 and the final order dated December 9, 1987 passed by the managing committee of the Rehabilitation Ministry Employees Cooperative House Building Society Limited (hereinafter to be referred to as the 'Society). The Managing committee of the Society has informed the petitioner vide the impugned letter dated December 9,1987 that "she did not fulfill the basic condition of being an employee or ex-employee of the Ministry/Department of Rehabilitation or any of its subordinate offices and, thus, no longer can be treated as valid member of the Society..."
(2) Briefly stated the case of the petitioner has been that she was a displaced person and was an employee of the Department of Social Welfare a subordinate office of the Ministry of Rehabilitation. The petitioner applied for enrolment as a member of the Society in 1971. After approval of her membership her name was entered in the register of members at S. No. 647 Her membership was re-affirmed by the Society in the year 1976. She had regularly been making payment to the Society as and when a demand was made and a total sum of Rs. 41.100.00 has been deposited by her with the Society.
(3) A notice dated October 15, 1987 was sent to the petitioner to show cause as to why her name be not removed from the list of members eligible for allotment of plots. A reply dated October 28,1987 was sent to the Society by the petitioner in which she had made a demand for certain documents and inter-alia pleaded that she could be removed from the membership only on the ground of non-payment of dues and that she had worked in the Social Welfare Directorate which was. wing of Rehabilitation and she has never defaulted even by a single day in making payment. It has further been pleaded by her that she had placed on record a number of documents including a certificate from the Deputy Director to prove that she was an employee of the Social Welfare Directorate, Women Section and if this question about her employment status had been raised in 1971 it would have been possible for her to trace some other documentary evidence also. She has now challenged the impugned order on various grounds including the jurisdiction or authority of the managing committee to remove the petitioner from the membership of the Society since it has no power to do so which vests only in the General Body of the Society. It has further been pleaded that the Society could not delegate its power to the Government to decide about the employment status and the documents already furnished were sufficient to prove her employment status.
(4) This writ .petition has .been opposed by the Society, respondent No. 1. It has, inter alia, pleaded that the Society was established in 1959 for the purpose of obtaining from the Government of India, respondent No. 2 land for the purpose of housing of the Rehabilitation Ministry Employees and the basic condition for membership of the Society was employment in the Rehabilitation Ministry.
(5) Clause 5 of the Bye-laws provided the eligibility criteria for becoming a member. An employee or ex-employee of the Ministry of Rehabilitation including its subordinate offices in Delhi/New Delhi were made eligible. A power was also given to the Society, to make eligible persons, other than displaced persons, members also. The Bye-laws were subsequently amended and the following clause (iii) was added to Clause 5 of the Bye-laws : Clause 5(iii) he/she is/has been an employee of the Ministries in Delhi/New Delhi of which the Department of Rehabilitation has been a part from time to time, under one Minister/Minister of State etc."
(6) This clause was made applicable with retrospective effect from January 10, 1968 by virtue of a notification issued by the Lt. Governor of Delhi.
(7) It has also been pleaded that about 60 acres of land was allotted to the Society in Malviya Nagar, by the Government of India ia the year 1971-72 so that it could be 'developed for allotment of plots to the members of the Society. This allotment was, however, cancelled by the Government of India in 1979 and this action was challenged by the Society in a writ petition in the Delhi High Court. This writ petition was decided in favor of-the Society on September 1, 1980 and a Special Leave Petition was filed in the Supreme Court of India by the Delhi Development Authority. An agreement was arrived at between the Government of India and the Society on May 5. 1982 and a copy of this agreement was filed in the Supreme Court as a result of which the Special Leave Petition was withdrawn. One of the conditions for the allotment of the land to the Society was that the membership of the Society shall be restricted to the bona fide members of the Society as on September 1, 1980; the date on which the writ petition'was allowed by the High Court, and in accordance with the Bye-laws of the Society as then prevailing- Consequently, fresh allotment of land was made in favor of the Society in Malviya Nagar and the m (8) Shri Shyam Babu, learned counsel for the petitioner, has submitted that the petitioner, as a matter of fact, was enrolled as a member of the Society as far back as 1971 and has not made any default in making payments. He has further submitted that the decision of the managing committee contained in the letter dated December 9, 1987 conveying to the petitioner that she is not a member of the Society has deprived her of her valuable right with retrospective effect which is not permissible under law. He has further contended that once a valid and regular member the petitioner could be deprived of her membership only under the provisions of the Act, Rules and the Bye-laws. According to him there has not been any violation by the petitioner who, thus, has neither ceased to be a valid member nor has she been expelled from membership. According to him, the petitioner has also not withdrawn from the membership of the Society and, thus, argued that the impugned order of December 9, 1987 be held to be illegal with the result that the petitioner continues to be a valid member of the Society.
(9) According to Sec. 2(k) of the Delhi .Co-operative Societies Act 'member' means a person joining in the application for registration of a cooperative society and a person admitted to membership after such registration in accordance with the Act, Rules and Bye-laws, and includes a nominal and an associate member and the Central Government when it subscribes to the share capital of a .Society. Clause 5(l)(a)(ii) of the Bye-laws provides that 'no person shall be a member unless he/she is an employee or ex-employee of the Ministry of Rehabilitation including its subordinate offices in Delhi/New Delhi or if posted out side wants to settle in Delhi/ New Delhi after retirement'.
(10) Admittedly, while moving an application for being enrolled as a member of the Society she had filed an affidavit dated June 19, 1972 claiming that she was an employee of the Department of Rehabilitation or its attached or subordinate office from December 1951 to March 1952 in Delhi. It has also not been disputed that she was informed subsequently about being a member of the Society. Rule 24 of the Rules provides for conditions to be complied with for admission to membership. Rule 25 of the Rules makes provisions for disqualification for membership, ft has, inter alia, been provided in this Rule that no person shall be eligible for admission as a member of the cooperative society if he has applied to be adjudicated an insolvent or is an undischarged insolvent or has been sentenced for any offence other than an offence of a political nature or an offence not involving moral turpitude and for a membership of a housing society if he/she owns a residential house or a plot of land for the construction of a residential house in any of the approved or unapproved colonies or other localities in the Union Territories of Delhi, in his own name or in the name of his spouse or any of his dependent children and is a member of any other housing society except otherwise permitted by the Registrar. It has also been made clear by this provision that a person shall be deemed to have ceased to be a member of the society From the date when the disqualifications are incurred by him. Clause 7 of the Bye-laws provides for the procedure for expelling a member of the Society by 2/3rd majority of votes of the members present at the General Meeting called by the managing committee for this purpose. It has further been stipulated that an opportunity shall be given to the member before he is expelled from the membership to represent his case in the General Meeting and expulsion shall not be effective unless it is approved by the Registrar.
(11) In the instant case there is no allegation by the respondent- society that the petitioner 1 as violated any terms and conditions of the Act, Rules or Bye-laws with the result that she may cease to be the member of- the Society.
(12) Mr. S.S. Vats, learned counsel for respondent No. 1 has submitted that, in fact, the petitioner is not covered by the provisions of Clause 5 of the Bye-laws and on that account she, in fact, could not be a valid member of the Society and all that has been done by the Society is to inform the petitioner about her not fulfillling the conditions to be a valid member.
(13) It is the admitted case of the parties that the Society was established in 1959 for the purpose of obtaining from the Government of India some land for the purpose of housing of the members of the Society. As already referred to above the allotment made in favor of the Society by the Government was cancelled in 1979 on account of which a writ was filed in this Court which was allowed on September 1,1980. This order was challenged by way of a Special-Leave Petition in-the Supreme Court where a compromise was arrived at and land was allotted to the Society in Malviya Nagar subject to conditions that the membership of the Society shall be restricted to bona fide members of the Society as on September 1, 1980 the date on which the writ petition was allowed by the High Court and in accordance with the Bye-laws of the Society as then prevailing. It was in pursuance of this agreement that a decision was taken.that the members'would file affidavits and other supporting evidence in support of their membership .which shall be approved by the Registrar, Cooperative Societies. Since the Registrar did not have independent machinery for the verification of the status of the members it was decided that he in turn would get the employment status of the members verified from the Government of India. It is in these circumstances that the membership of the petitioner like other members was being verified. The case of the respondent has been that the information made available by the petitioner in support of her employment status was sent to Government of India, Ministry of Home Affairs, Department of Internal Security Rehabilitation Division wherefrom a letter dated September 19, 1987 was received' by the Registrar, Cooperative Societies, Delhi Administration staling therein that the employment status of the petitioner could not be certified.
(14) Learned counsel for the petitioner has submitted that the petitioner worked in the Social Welfare Directorate, a Wing of the Department of Rehabilitation under the Ministry of Rehabilitation as a subordinate office and that it was now not possible for the petitioner to furnish documentary evidence in support of her claim. It is also submitted that had this information been asked for in the year 1971 the petitioner could have made efforts for its production and now she cannot be deprived of her valuable right just on account of the negligence or fault of the Society.
(15) We are conscious of the fact that after a lapse of such a long period it may become difficult for a person to collect 'the relevant evidence. However, the Society has no option but to ask for the requisite information so that the employment status of the petitioner is got verified from the Government of India in terms of the agreement under which the land has been allotted to the Society.
(16) This aspect would, however, be kept in view by the concerned authorities while taking a decision about the employment status of the petitioner. The petitioner has filed in this Court a photocopy of the Administrative Directory of the Government of India, 1948 Edition to show that the Women's Section was a part of the Ministry of Rehabilitation and that she worked in the Women's Section from December 1951 to February 29, 1952. The learned counsel for respondent No. 2 has admitted that the Social Welfare and Rehabilitation Directorate were transferred from Delhi Administration to the Ministry of Rehabilitation which is now a division of Ministry of Home Affairs from February 1,1957 but the petitioner did not provide any documentary evidence in .support of her. aforesaid claim before the Society.
(17) Shri S.S. Vats, learned counsel for respondent no. I, has submitted that along with the impugned letter dated December 9, 1987 a cheque forRs.41,100.00 being the refund of the amount deposited by the petitioner was sent to the petitioner which has since been encashed by her. He has, thus, submitted that the petitioner having ' withdrawn the share money she ceases to be a member of the Society. It is a matter of record that the petitioner has been controverting the plea of the Society that she was not a valid member of the Society and had given answer to the show-cause notice. However, the cheque for the aforesaid amount was sent to her in pursuance of a decision by the managing committee. We have already come to the conclusion that the managing committee could not take a final decision that the petitioner was not a valid member. The withdrawal of the amount by the petitioner was, thus, not voluntary and we are of the considered view that the petitioner would not cease to be a member of the Society merely on the ground of encashment of the cheque by her. It was submitted by the learned counsel for the petitioner that 'the petitioner had, in fact, made an offer for payment of money to the Society which has not been accepted. In these circumstances, this argument cannot be of any avail to the Society.
(18) The short question now to be considered is as to whether the managing committee was competent to take a decision that the petitioner, was not a valid member of the Society. A perusal of the Bye-laws makes it abundantly clear that to become a member of the Society the decision has to be approved by its General Body. A person would also cease to be a member for lack of the confirmation of the membership as per bye-law 5(iv). The necessary corollary, thus, would be that it is only the General Body of the Society which could take a decision as to whether the petitioner is a valid member of the Society or not. In fact, such decision would tantamount to the conclusion that such a person stands expelled from the membership of the Society. It is the admitted case .of the parties that in the instant case the impugned decision has been taken only by the managing committee and so this cannot be upheld..
(19) It would be open to the petitioner to make available to the Society within two months such documents or evidence which is available with her in support of her claim to be an employee or ex-employee of Ministry of Rehabilitation including its subordinate offices in terms of Clause 5 of the Bye-laws. The Society in that case would send .the requisite information to the Government of India through the Registrar, Cooperative Societies for verification. In case the reply from the Government of India is not favorable to the petitioner a decision with regard to her membership shall be taken only by the General Body of the Society where she would be given an opportunity to represent her case and till any decision to the contrary is taken the petitioner shall be deemed to be a member of the Society.
(20) As a result the writ petition is allowed. The decision of the managing committee of respondent No. 1-Society conveyed to the petitioner vide letter dated December 9,-1987 is set aside. The Society will, however, be at liberty to proceed further in the matter in the light of the observations in the earlier part of the judgment. Keeping in view all the facts and circumstances, parties are left. to bear their own costs.