State of West Bengal v. Indian Oil Employees Co-operative Housing Society — 1994 DIGILAW 106 (CAL)

JUDGMENT Bhagabati Prasad Banerjee, J 1. This appeal is against the judgment dated 20th August, 1993 passed by the learned trial Judge in C.O. No. 15941 (W) of 1992. By that order the learned trial Judge has held that the Registrar of Co-operative Societies cannot decline to register the Society simply on the basis of the objections sought to be raised in the letter dated 10th May, 1990 and 30th March, 1992 being annexures 'A' and 'O' to the writ petition. It was further held that the answers to the objections have already been provided by the C.M.D.A. itself of its letter dated 11th October, 1991 being annexure 'O' to the writ petition. Considering the facts and circumstances of the case the learned trial Judge was of the view that there was no ground to refuse registration of the society as a housing co-operative society as the area of operation can always be altered by the proposed society in relation to its object of establishing on co-operative basis settlement of Housing scheme for its members. Accordingly the learned trial Judge directed the Registrar of Co-operative Societies and the Deputy Registrar of Co-operative Societies (Housing) to register the society and to issue registration certificate to the petitioner society within a period of one month from the date of communication of the order. 2. The facts of this case are that an application for registration of Indian Oil Employees' Co-operative Housing Society Limited was filed before the Registrar of Co-operative Societies for the purpose of registration under the provisions of the West Bengal Co-operative Societies Act, 1983 on 22nd September, 1989. Thereafter the Assistant Registrar of Co-operative Societies had written to the Chief Promoter of the proposed society on 19th October, 1989 asking for certain documents and plans demarcating the proposed plots, roads and tanks etc. The said documents and plans were duly furnished by the writ petitioners respondents to the authority concerned on 9th November, 1989. It is not necessary for us to go into the facts in details inasmuch as all the points that were raised by the parties before the learned trial Judge had been duly and extensively considered by the learned trial Judge and Mr. Bhattacharya, learned Advocate appearing for the appellants admits that all the points either on the question of fact or on the question of law had been duly considered by the learned trial Judge. Bhattacharya, learned Advocate appearing for the appellants admits that all the points either on the question of fact or on the question of law had been duly considered by the learned trial Judge. But it was submitted by the learned Advocate appearing for the appellants that the learned trial Judge in the facts and circumstances of the case should not have granted relief in view of the fact that the Registrar of Co-operative Societies retains power to refuse registration on any ground whatsoever and that until and unless the Registrar of Co-operative Societies is fully satisfied with regard to the title of the land, composition of membership, verification of antecedent of each and every member of the proposed co-operative society he may not grant registration. He must also be satisfied whether the area concerned was under the Urban Land Ceiling Act or a vacant land under the said Act and/or whether a particular area is treated as residential or non-residential area or under the Draft Outline Development Plan framed by the CMDA in the city of Calcutta. Further it was pointed out that existence of land which must be free from any objection is a condition precedent for grant of registration for a housing co-operative society under the scheme of the Act. In this connection it was submitted by Mr. Bhattacharya that the said land was a water bed and accordingly no registration could be granted to a Society which is going to construct on the water bed. Secondly, it was submitted by Mr. Bhattacharya that in the instant case the C.M.D.A. was not a party and in absence of that authority the writ application was not maintainable. The next objection that was taken was that the Bye-Laws that was submitted was highly defective as 31 persons have signed as promoters in Bye-Laws but before the learned trial Judge names of 284 persons were disclosed who intended to be the members of the said society and as such it is not a fit and proper case where registration should be granted. 3. 3. With regard to the land in question it was submitted that the land of the proposed society intended to be acquired was not available for the purpose of construction of houses as it was in the occupation of bargadars under the provisions of the West Bengal Land Reforms Act and that the land on which bargadar is there the same could not be utilised for the purpose of making construction. Incidentally, in order to ascertain the condition of the land the learned trial Judge appointed a Special Officer and the Special Officer on inspection submitted a report wherefrom it was clear that the said land was not a water bed. But Mr. Bhattacharya submitted that in the rainy season water accumulates on that land and as such the same should be treated as water bed. The learned trial Judge over-ruled that contention not only because of the report submitted by the Special Officer but because of the fact that in the record of rights the said land was originally recorded as "Bill Machchas" (viz. land for pisciculture) but subsequently the record of rights was amended and the character of the land was recorded as "Sali" which means high land on which agricultural activities are carried on. On this question we cannot accept the contention of Mr. Bhattacharya that the said land is unsuitable for the purpose of construction of building in view of the fact that from the information slip supplied by the Revenue Authorities in the statutory form it was stated that in the record of rights there was no recorded bargadar and that from the record of rights it also appears that the said land is recorded as a "Sali" land. If the character of the land is described in the record of rights as "Sali" and there was no bargadar recorded in the said land in that event it cannot be contended that the said land was water bed inasmuch as in water bed no agricultural activities can be carried on. Accordingly this contention does not appear to be bona fide at all. Accordingly this contention does not appear to be bona fide at all. On the question of furnishing particulars that were sought for by the Registering Authority before considering the case for registration is concerned it appears that even though there is no provision for issuing a no-objection certificate from the C.M.D.A., the C.M.D.A. authorities in a letter admitted that the C.M.D.A. had no objection for acquiring of the land for the proposed Co-operative Society and that it was also admitted on the basis of the records that the C.M.D.A. ear-marked the area in question as residential area in the Draft Outline Development Plan. In the said Draft Outline Development Plan some area was also ear-marked as water beds but this area is not included in that list but is ear-marked for residential area. Accordingly, when the C.M.D.A. considers the land as residential we do not find any reason to hold that the said land could not be used for residential purpose. The same also indicates that these are the lands which are capable of being used only for residential purpose. With regard to the submission made by Mr. Bhattacharya that the agreement for sale had already expired and accordingly the registration could not be granted, it appears that the agreement was extended from time to time and the last extension is valid upto 31st March, 1994. Lastly it was submitted that in accordance with the provisions of s. 13 (5) of the West Bengal Co-operative Societies Act if the registration of a co-operative society and its by-laws is refused or the application for such registration is not disposed of by the Registrar within the period mentioned in clause (a) or clause (b), as the case may be, of sub-s. (4), the Registrar shall transfer the application to the Co-operative Registration Council referred to in sub-s. (7) with his comments, and shall inform, in writing, the applicant or the chief promoter of the application of such transfer, within one month of expiry of the aforesaid period. It is admitted that when the writ application was moved before the learned trial Judge the Co-operative Registration Council was not functioning and it does not appear that as yet it is functioning and it does not appear that as yet formally the registration has been refused or in case the registration has not been disposed of the same has not been transferred to the Co-operative Registration Council as is mandatorily required under S. 13 (5) of the said Act. In this connection it may be mentioned that under S. 13 (4) (b) of the said Act an application for registration is required to be disposed of by the Registrar within four months from the date of its receipt by him. Unfortunately in the instant case the application for registration was filed on 22nd September, 1989 and even before filing of the writ application the same was not disposed of and all the points that were raised, some of them were raised in the affidavit-in-opposition. 4. With regard to the objection that the C.M.D.A. was not a party and as such the writ application should have been dismissed has not been specifically raised in the affidavit-in-opposition. It is well-settled that by the decision of the Supreme Court in the case of Himangsu Kumar Bose vs. Jyoti Prakash Mitra, reported in AIR 1964 SC 1636 that unless the point of non-joinder or mis-joinder of party is taken by the respondents the court cannot take up the point and hold that the petition is not maintainable in the absence of pleas. In this case the point has been raised in the affidavit-in-opposition. If that point was raised at the time when the writ petition was moved the writ petitioners could have taken steps for addition of party. But at this stage we cannot allow this point to be raised for the first time in appeal. With regard to the non-joinder as party of the owner of the land, the said point was also not raised before the learned trial Judge and we are not inclined to allow this point to be raised for the first time in appeal. Furthermore, no relief is sought for either against the C.M.D.A. or against the owner of the land in the writ application and as such we are not inclined to allow such point to be raised before us in this appeal. Furthermore, no relief is sought for either against the C.M.D.A. or against the owner of the land in the writ application and as such we are not inclined to allow such point to be raised before us in this appeal. We have also perused all the relevant papers and documents on which reliance was placed by the learned trial Judge and also other documents and papers produced before us for the purpose of satisfying whether there was any lawful ground for which the application for registration of a housing co-operative society should be rejected. One thing which was argued by Mr. Bhattacharya, it appears to us that in the Bye-Laws which is stated to be a model Bye-Law provides that any person could be made a member irrespective of the fact that he is an employee of the Indian Oil Corporation. We are of the view that for the purpose of registration the membership of the said proposed housing society should be confined only to the employees of the Indian Oil Corporation without prejudice to the rights of the writ petitioners to amend the Bye-Laws subsequently in case the situation arises in accordance with law. It also appears to us that certain persons and/or authorities were opposing the registration of the said housing society as it would be evident from the letter dated 18/19th May, 1992 written by the Joint Secretary to the Government of West Bengal, Land and Land Reforms Department to the Registrar of Co-operative Societies in which it was alleged that complaints have been received by the Minister-in-Charge of the Land and Land Reforms Department that one Indian Oil Employees Co-operative Housing Society is going to be registered in violation of all norms. It was specifically stated that allegations were received by the Minister-in-Charge concerned that the sole purpose of this so-called co-operative society was to speculate on real estate under the cover of a co-operative society and for that purpose it has already grabbed land. In reply to that letter, by the letter dated 1st, September 1992 the Registrar of Co-operative Societies wrote to the Joint Secretary concerned indicating the reasons and grounds for which registration could not be granted. The objections that were raised were either contrary to records and/or have been clarified on the production of the records and documents. In reply to that letter, by the letter dated 1st, September 1992 the Registrar of Co-operative Societies wrote to the Joint Secretary concerned indicating the reasons and grounds for which registration could not be granted. The objections that were raised were either contrary to records and/or have been clarified on the production of the records and documents. In this connection reference may be made to a letter dated 21st August, 1990 written by the Minister for Petroleum & Chemicals, Government of India to the Hon'ble Chief Minister, Government of West Bengal. In that letter it was pointed out that the said Housing Co-operative Society of the Indian Oil Corporation employees had made an application for registration and that it was pointed out that such society had been primarily formed to construct a housing colony at Calcutta for providing housing units to Indian Oil Employees based in the eastern region. For that purpose the Indian Oil Corporation has set apart an amount of rupees 2.5 crores in the current year's house building advance budget for the benefit of the employees who are members of the above-mentioned housing society of Indian Oil employees. In the said letter request was made to the Hon'ble Chief Minister to the effect that the amount of rupees 2.5 crores which has been set apart would not find fulfilment unless the Government clearance is accorded. Accordingly request was made to the Hon'ble Chief Minister to look into the matter personally and expedite clearance from the Government so that the Society can proceed with the land development and construction of housing units for Indian Oil Employees. From this background it is clear that the allegations made against the writ petitioner respondent were not at all bona fide and that the Registrar of the Co-operative Society is a statutory body. 5. Co-operative Society which could be registered is provided in s. 11 of the West Bengal Co-operative Societies Act. Section 12 specifically bars registration in some cases and cases where registration could not be given has been specifically mentioned therein. It is admitted that the case of the writ petitioner respondents does not come within the mischief of s. 12 of the said Act. Section 12 specifically bars registration in some cases and cases where registration could not be given has been specifically mentioned therein. It is admitted that the case of the writ petitioner respondents does not come within the mischief of s. 12 of the said Act. Under s. 15 of the said Act if the Registrar is satisfied that an application for registration of a co-operative society and its bye-laws is in accordance with the provisions of this Act and the Rules, he shall, unless for reasons to be recorded in writing, he thinks fit to refuse to register the co-operative society in accordance with the provisions of s. 13 (4) of the said Act. The time limit has been fixed by s. 13 (4)(b) of the Act but in this case within the time limit nothing has been done. On the contrary it appears to us that a fishy and roving investigation has been undertaken by the Registrar of Co-operative Societies travelling beyond the scope and ambit of the Co-operative Societies Act. 6. Essence of the ultra vires doctrine is that a person or a body acting under statutory power can only do those things the statute authorises him to do it : An Act will be ultra vires if the person or body doing it did not have statutory power to do it. An Act may also be ultra vires not because there was no power to do it, but because of the way the power was exercised, or to put it in another way, because of the use to which the power was put. Thus, a chal1enge to the legality of an Act may be either on the ground that there was no power to do it or on the ground that though or if, there was power to do it. The power was exercised in an unlawful manner. A challenge on the first ground is that the body in question acted ultra vires in the narrow, or think sense of that doctrine that there was power to do it. A challenge on the second ground is that though the body had the power in question and was thus acting intra not ultra vires. it exercises the power in a way not permitted by legal rules: and thus acted ultra vires in the wider sense of that doctrine. 7. A challenge on the second ground is that though the body had the power in question and was thus acting intra not ultra vires. it exercises the power in a way not permitted by legal rules: and thus acted ultra vires in the wider sense of that doctrine. 7. This is a case where the Registrar of Co-operative Societies had not considered the application for registration in accordance with the provisions of the statute: "The exercise of statutory power is invalid unless the repository of the power has acted honestly and in good faith. The deliberate promotion of a purpose, be it public or private, alien to that for which the power was conferred is to be regarded as an act of bad faith, but in English Administrative Law practical illustrations of bad faith have been so rare that the concept has not taken a clear shape. Bad faith may be imputed to ministers, but probably not to the Crown itself . . . . . . where a prima facie case of misuse of power has been made out, it is open to a court to draw the inference that unauthorised purposes have been pursued if the competent authority fails to adduce any grounds supporting the validity of its conduct. The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith, nevertheless the decision will be set aside That is established by Padfield vs. Minister of Agriculture, Fisheries and Food which is a landmark in modern administrative law. [Breen vs. Amalgamated Engineering Union (1971) 2 QB 175 at 190; see Secretary of State for Employment vs. ASLEF (No.2) (1972) 2 QB 455 at 493; Secretary of State for Education and Science vs. Tameside Metropolitan Borough Council (1977) A.C. 1014]. 8. Ordinarily the writ Court does not venture to pass such an order as has been passed by the learned trial Judge. 8. Ordinarily the writ Court does not venture to pass such an order as has been passed by the learned trial Judge. But at the same time it is crystal clear that the statutory authority whose powers, functions and duties are all circumscribed has travelled beyond the limits of law and sitting over the matter contrary to the provisions of the statute and thereby frustrating a very important project undertaken by the employees of the Indian Oil Corporation with the help of the money of the said Corporation amounting to rupees 2.5 crores and the project would fail if the things are not settled by 31st March. 1994, i.e. the date by which the agreement for sale of land is extended. If in such circumstances the court in the usual way directs the authorities concerned to consider the matter in that event the whole thing will come to an end and the loss and injury that the parties would suffer could not be compensated by the Court or any other authority. It is because of the urgency and for the ends of justice and not for the purpose of frustrating a scheme for providing residential accommodation to the people of this country who are suffering very badly for want of shelter that this case should be treated as an exception to the general Rule. Right to shelter is one of the rights recognised under Article 21 of the Constitution and the question is whether the right of shelter should be denied by the court on mere technicalities and vagaries of the statutory authorities. The statute has fixed limitation of four months. In this case five years have elapsed but still the matter is being dragged on and on some plea or pretext. Correspondence is being made by the statutory authority pointing out something which clearly indicates that the authorities concerned had been proceeding in this matter with some closed mind for some reason and other. Under such circumstances it is a fit and exceptional case, in our view, the learned trial Judge was right in passing the order in the manner it has been passed. This Court is of the view that an important project which is going to be crystalised with the help of money given by a public undertaking should not be allowed to be frustrated by some persons who are not employees of the Indian Oil Corporation. This Court is of the view that an important project which is going to be crystalised with the help of money given by a public undertaking should not be allowed to be frustrated by some persons who are not employees of the Indian Oil Corporation. If the employees of a public undertaking take any venture the same should be given some preference and credit aver the ventures undertaken by private ventures or private promoters as it is well-known that private promoters are readly doing ventures far the purpose of speculation in dealing with lands and flats and to that extent we have expressed our mind and have given directions accordingly. 9. Considering all the facts, circumstances and submissions we do not find any reason to interfere with the order passed by the learned trial Judge and accordingly the appeal is dismissed without any order as to costs. As the time fixed the learned trial Judge had expired we direct the appellants to act in terms of the order passed by the learned trial Judge within a period of a fortnight from today. 10. Let a xerox copy of this order be given to the learned Advocates for the parties an the usual undertaking. Nikhil Nath Bhattacharjee, J: I agree. Appeal dismissed.