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2019 Supreme(Del) 971
IN THE HIGH COURT OF DELHI AT NEW DELHI
Vipin Sanghi, Rekha Palli, JJ.
Sheetal Vihar Co-operative Group Housing Society Ltd and Ors. – Appellants
Versus
Registrar Co-operative Societies and Ors. – Respondents
Writ Petition (Civil) No. 3495 of 2019
Decided On : 05-04-2019
Rakesh Munjal, Adv., Raghav Jha, Adv., Pranshu Garg, Adv., Anjum Javed, Adv., Devendra Kumar, Adv., Faran Ahmed, Adv.
The main legal point established in the judgment is the interpretation of the voting rights and eligibility for contesting elections of joint members in cooperative societies under the Delhi Cooperative Societies Act, 2003 and the Rules.
Headnote:
Illegal Election - Cooperative Societies - DCS Act 2003, Rule 22(1), Rule 53 - The court discussed the violation of Rule 22(1) read with Rule 53 of the Delhi Cooperative Societies Rules, 2007 and the relevant provisions of the Delhi Cooperative Societies Act, 2003. It highlighted the legal position emerging from Section 25(b) and 35(6) of the Act, and the interpretation of Rule 22(1) regarding joint membership and voting rights.
Fact of the Case:
The petitioners challenged the decision of the Registrar of Cooperative Societies declaring the election of the President and Secretary of the society as illegal due to violation of the Delhi Cooperative Societies Rules, 2007.
Finding of the Court:
The court found that the election of the President and Secretary was indeed in violation of the relevant provisions of the Delhi Cooperative Societies Act, 2003 and the Rules. It held that the petitioner nos.2 and 3 were not entitled to contest the elections or be elected as President and Secretary of the society.
Issues: The issues involved the legality of the election of the President and Secretary in the petitioner no.1/society, the jurisdiction of the Registrar of Cooperative Societies, and the consideration of the reply submitted by the petitioners.
Ratio Decidendi: The court's decision was based on the interpretation of the relevant provisions of the Delhi Cooperative Societies Act, 2003 and the Rules, specifically focusing on the voting rights of joint members, the limitations on contesting elections, and the discretionary jurisdiction under Article 226 of the Constitution of India.
Final Decision: The writ petition was dismissed as the court was not inclined to interfere with the impugned order, considering that no injustice had been done to the petitioners.
Vipin Sanghi, J.
C.M. No.16032/2019
Exemption allowed, subject to all just exceptions.
W.P.(C) 3495/2019 & C.M. No.16031/2019
1. The petitioners have preferred the present writ petition to assail the order dated 25.02.2019 passed by the Assistant Registrar of Cooperative Societies, conveying the decision of the Registrar of Cooperative Societies that the election of the President and Secretary of the petitioner no.1/society, i.e., Sheetal Vihar Cooperative Group Housing Society Ltd. held on 11.02.2018, was in violation of Rule 22(1) read with Rule 53 of the Delhi Cooperative Societies Rules, 2007 and, thus, was illegal. The order dated 25.02.2019 in its entirety reads as follows:-
"To
The President/Secretary
Sheetal CGHS Ltd.,
Plot No.10, Sector-23,
Dwarka, New Delhi-110077.
Sub: Illegal election of President and Secretary who were the joint members with their names stand second as per the list of members.
This office is in receipt of a representation from some of the members of Sheetal Vihar CGHS Ltd. alleging that despite pointing out the disqualification of candidate namely Sh.Chander Mohan Gupta and Sh.Sanjeev Nayyar, being second name in joint membership, the R.O had allowed them to contest the election and also declared them elected on 11.02.2018 as President and Secretary, respectively, of the society, violating the section 25(b) and 35(6) of DCS Act 2003.
In view of the above, it is to inform that the matter was submitted before the higher authorities and it has been decided that the election of President and Secretary of the society held on 11.02.2018 was conducted in violation of Rule 22(1) read with Rule 53 of DCS Rules, 2007 and thus is declared illegal. The society is also directed to conduct the fresh election of the post of President and Secretary for democratic setup, under intimation to this office.
(K.P. SUHAG)
Asstt. Registrar (Sec-7)"
2. The submission of Mr.Munjal, learned senior counsel for the petitioner, firstly, is that the said order has been passed illegally and without any jurisdiction. He submits that if any member of the petitioner no.1/society was aggrieved by the election of petitioner nos.2 and 3 as the President and Secretary of the said society respectively, it was for them to challenge the same in an election petition under Section 70 of the Delhi Cooperative Societies Act. He further submits that the reply submitted by the petitioners on 31.07.2018 to the notice dated 02.05.2018, has not been considered by the Registrar of Cooperative Societies while passing the impugned decision.
3. Mr.Munjal has further contended that even though the petitioner nos.2 & 3 were not primary members of the petitioner no.1/society, they could be authorized by the primary members to vote and attend meetings on their behalf. In support of his aforesaid contention, Mr.Munjal sought to place reliance on the first proviso to Rule 22(1), which entitles a person whose name stands first in the share certificate to authorise others to vote and attend meetings on his behalf. In this regard, he also places reliance on a decision of the Division Bench of this Court in Krishna Devi & Anr. vs. Rajasthan Cooperative Group Housing Society Ltd. & Ors., W.P.(C) No.5849/2014 decided on 01.10.2014.
4. We have heard the submissions of Mr.Munjal and considered the same. We have also perused the impugned order and the other documents placed on record as also the legal position emerging from the relevant provisions of the Delhi Cooperative Societies Act, 2003 (hereinafter referred to as "Act") and the Rules. As would be seen, the impugned order itself observes that the appointment of the petitioner nos.2 and 3 was in violation of Section 25(b) and 35(6) of the Act. Section 25 of the Act insofar as it is relevant, reads as follows:-
"25. Votes of members
Every member of a co-operative society shall have one vote in the affairs of the co-operative society:
PROVIDED that -
(a) xxx xxx xxx
(b) A nominal or associate or joint member shall not have th
