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IN THE SUPREME COURT OF INDIA
P. SATHASIVAM and Dr. B.S. CHAUHAN
Sant Lal Gupta & Ors....Appellants
Versus
Modern Co-operative Group Housing Society Ltd. and Ors. ...Respondents
CIVIL APPEAL NO. 9439 OF 2003
Decided on : October 18, 2010
(2003) 5 SCC 83; AIR 1971 SC 733; AIR 1971 SC 2295; AIR 1972 SC 1816; AIR 1982 SC 1234; AIR 1996 SC 2052 – Relied upon
(b) Delhi Co-operative Societies Rules, 1973 – Rule 36(3) – Expulsion of members – Resolution of society not approved by Registrar – No deeming provision providing that in case the resolution is not considered and finally decided by the Registrar within a period of six months, the resolution shall become effective and operative – Said resolution cannot be given effect to. (Para 13, 14)
(c) Interpretation of statute – Creating a fiction by judicial interpretation may amount to legislation, a field exclusively within the domain of the legislature – Not permissible. (Para 14)
(1999) 6 SCC 82; AIR 1992 SC 96 – Relied upon
90 (2001) DLT 652 – Cited with approval
(d) Interpretation of statute – Statute providing for a period of 6 months – High Court in its judgment extending it to 1 year – Amounts to legislation. (Para 17)
(e) Administration of Justice – Binding precedent – Coordinate Bench – Earlier Division Bench of High Court holding that deeming provision was not permissible – Yet later Division Bench, while particularly taking note of earlier decision, holding otherwise without giving any reasons – Not permissible. (Para 18, 20, 27, 28)
AIR 1968 SC 372; (1992) 4 SCC 97; (1998) 5 SCC 637; (2003) 5 SCC 480; AIR 2004 SC 1794; (2004) 5 SCC 573; (2008) 3 SCC 172; (2008) 9 SCC 407; AIR 2008 SC 2026; AIR 2009 SC 2328; (2009) 3 SCC 258; (2009) 4 SCC 422; AIR 2010 SC 1285
– Relied upon
(f) Constitution of India – Article 226 – ‘Writ of certiorari’ and ‘appeal’ – High Court acts merely in a supervisory capacity and not appellate capacity – Writ of certiorari can be issued only when there is a failure of justice – There must be an error apparent on the face of record – Such errors may include giving of reasons bad in law or inconsistent, unintelligible or inadequate; application of a wrong legal test to the facts; failing to take relevant considerations into account; wrongful admission or exclusion of evidence; arriving at a conclusion without any supporting evidence – Writ of certiorari can be issued when there is an error in jurisdiction or the authority has acted without jurisdiction or in excess of its jurisdiction or has failed to act. (Para 29)
AIR 1986 SC 302; (2006) 5 SCC 173; (2008) 2 SCC 417; (2008) 14 SCC 171 – Relied upon
Facts of the case:
The appellants had been the members of the Modern Co-op. Group Housing Society Ltd. and claimed to have paid all their subscriptions of membership and other dues on the demands made by the Society. The Society had proposed the expulsion of 27 members including the appellants, by its Resolution dated 27.4.1987 and the said proposal was sent to the Registrar of the Co-operative Societies as required under the provisions of the Delhi Co-operative Societies Act, 1972, for approval and meanwhile it enrolled new members, whose approval was also sought.
The Registrar rejected the approval.
The Society approached the Financial Commissioner in revision under Section 80 of the Act 1972 which was also dismissed.
Being aggrieved, the Society filed Writ Petition which has ultimately been allowed.
Finding of the Court:
Impugned judgment cannot be sustained.
Result:
Appeal allowed.
JUDGMENT
Dr. B.S. CHAUHAN, J.
1. This appeal has been filed against the judgment and order dated 4.9.2002 passed by the Delhi High Court in Civil Writ Petition No. 2/98 by which the High Court has set aside the judgment and order of the Financial Commissioner dated 3.11.1997 passed in Case No.234/97-CA, and also the judgment and order of the Registrar of the Co-operative Societies dated 26.8.1997.
2. Facts and circumstances giving rise to this appeal are that the appellants had been the members of the Modern Co-op. Group Housing Society Ltd. (hereinafter called the `Society') and claimed to have paid all their subscriptions of membership and other dues on the demands made by the Society. The Society had proposed the expulsion of 27 members including the appellants, by its Resolution dated 27.4.1987 and the said proposal was sent to the Registrar of the Co-operative Societies (hereinafter called the Registrar) as required under the provisions of the Delhi Co-operative Societies Act, 1972 (hereinafter called as `Act 1972'), for approval on 20.2.1988 and meanwhile it enrolled new members, whose approval was also sought. In spite of all efforts made by the Registrar, the Society did not submit the record before him prior to 19.9.1995. The Registrar vide order dated 2.2.1996 issued notice to the Society for consideration of the said resolution and vide order dated 4.6.1996 rejected the approval.
3. Being aggrieved, the Society approached the Financial Commissioner by filing a revision under Section 80 of the Act 1972 which was also dismissed vide judgment and order dated 30.7.1996. Being aggrieved, the Society filed Writ Petition No.3325/1996 before the Delhi High Court and after hearing the same, the matter was remanded to the Registrar for reconsideration. In pursuance of the order of the Delhi High Court, the Registrar considered the matter afresh and passed an order dated 26.8.1997 rejecting the approval of the expulsion of the appellants and other members. Being aggrieved, the Society preferred a revision before the Financial Commissioner which was also dismissed vide order dated 3.11.1997.
4. The Society challenged the aforesaid orders of the Financial Commissioner as well as of the Registrar by filing Writ Petition before the Delhi High Court which has been allowed. Hence, this appeal.
5. Shri D.N. Goburdhan, learned counsel appearing for the appellants has submitted that the High Court has mis-directed itself and did not decide the core issue involved in the case. The High Court has held that in case the resolution sent by the Society is not considered and decided finally by the Registrar within a period of 6 months as required under Section 36(3) of the Act 1972, it will be deemed to have been approved, though, there is no such deeming provision under the Act 1972. The High Court further committed an error extending the period of 6 months to 1 year re-legislating the statutory provision. More so, there is no reference to the findings recorded by the Financial Commissioner and the Registrar in their impugned orders and no reasons have been recorded to set aside the same. Thus, appeal deserves to be allowed.
6. On the contrary, Shri M.C. Dhingra, learned counsel appearing for the Society, has vehemently opposed the appeal contending that the appellants had been defaulters and in spite of several demands made by the Society they did not pay the amount. Their expulsion was strictly in consonance with the Delhi Co-operative Societies Rules, 1973 (hereinafter called the Rules). No fault can be found with the judgment and order of the High Court. The appeal lacks merit and is liable to the dismissed.
7. We have considered the rival submissions made by learned counsel for the parties and perused the record.
8. Rule 36(3) of the Rules reads as under:
"36. Procedure for expulsion of members-
(1) xx xx xx xx
(2) xx xx xx xx
(3) When a resolution passed in accordance with sub-rule (1) or (2) is sent to the Registrar or otherwise brough
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