Research › Search › Judgment

Delhi High Court · body

2008 DIGILAW 623 (DEL)

New Jai Bharat President Welfare Association (Regd. ) v. Registrar of Cooperative Societies

2008-07-01

ARUNA SURESH, MUKUL MUDGAL

body2008
JUDGMENT Mukul Mudgal, J. 1. This Review Petition filed by the Delhi Cooperative Tribunal arises out of the judgment passed by this Court on 28th March, 2007 whereby the review petitioner seeks modification of the order dated 28th March 2007 only qua what is termed as adverse remarks against the review petitioner herein i.e. the Delhi Cooperative Tribunal. This Court by its judgment dated 28th March, 2007 had taken note of the fact that a Division Bench of this Court by an order dated 11th May, 2006 had directed that the elections of the Managing Committee of the petitioner association, New Jai Bharat Residents Welfare Association, should be held immediately. However, the Delhi Cooperative Tribunal, applicant herein, inspite of the specific directions passed by the Division Bench of this Court for holding immediate election had instead passed an order dated 9th November, 2006 postponing the elections of the petitioner-association. This Courts judgment dated 28th March, 2007 while disposing of the writ petition and the contempt petition had held that the Tribunal or any other Court subordinate to this Court should not interfere with the mandate of this Court so as to alter/modify/stay the holding of the elections and further directed the respondents to conduct the elections within two months from the date of the pronouncement of the judgment. 2. The review petitioner, thus, seeks expunging of the following remarks made by this Court in the order dated 28th March 2007 whereby the Court held as under: We make it clear that the Tribunal is functioning under the jurisdiction of this Court and does not have the power to interfere with a Mandamus issued by the Court. Such orders indeed border on contempt of an order of this Court. In the present case, we are recording our extreme displeasure at the course of conduct adopted by the Tribunal and are of the view that such disregard for the mandate of this Court deserves to be censured. However, in case any repetition of disregard for the orders of this Court is shown, this Court will be left with no other alternative except to adopt more stringent measures. 3. However, in case any repetition of disregard for the orders of this Court is shown, this Court will be left with no other alternative except to adopt more stringent measures. 3. The facts of the case leading to the present review petition are as follows: a. A Division Bench of this Court by an order dated 11th May 2006 in WP (C) 20708/2005 titled as The New Jai Bharat Residents Welfare Association v. Registrar of Cooperative Societies, directed that the elections of the Managing Committee of the said society should be held immediately. The relevant portion of the said order dated 11th May, 2006 is reproduced herein below: It is also brought to our notice that no election is held in respect of the Managing Committee of the society, although, the term of the old Committee has already expired. In our opinion, the Registrar of Cooperative Society cannot shut his eyes to such non action on the part of the Managing Committee, as it is his statutory obligation to see that the elections of the Managing Committee are held regularly and in time and according to the requirements of the statute. Therefore, we direct that the elections of the Managing Committee and the office bearers of the society shall be held immediately. A notification calling for elections shall be issued by the Registrar of the Cooperative Societies within a week and a Returning officer shall be appointed at the time of the issuance of the said notification. Such Returning Officer shall proceed to hold the elections immediately thereafter in accordance with law and shall take all necessary steps in that regard for holding early elections of the office bearers of the Managing Committee of the Society. In terms of the aforesaid order this writ petition stands disposed of. A copy of this order be given dasti to th counsel appearing for the parties. .b. Thus, it is evident that the court had directed immediate holding of elections as evident from the direction to issue a notification for election within one week. .c. In compliance of the said order, the Registrar of Cooperative Societies appointed a Returning Officer vide office order No. F.47/1158/CGHS/NW/708 dated 24.07.2006 to hold the elections of the Managing Committee of the petitioner-society under the amended Delhi Cooperative Society Act, 2003. .c. In compliance of the said order, the Registrar of Cooperative Societies appointed a Returning Officer vide office order No. F.47/1158/CGHS/NW/708 dated 24.07.2006 to hold the elections of the Managing Committee of the petitioner-society under the amended Delhi Cooperative Society Act, 2003. The Returning Officer issued an agenda notice on 30th October, 2006 giving the entire details of the elections to be conducted for the petitioner-Society. .d. Accordingly, the Returning officer published a list of defaulters as on 31st March, 2006 but on receiving certain objections he issued a notice dated 11th October, 2006 saying that nobody would be treated as a defaulter and confirmed on 27th November, 2006 his proposal to conduct elections as directed by the Division Bench of this Court on 11th May, 2006. .e. Being aggrieved by the above action of the Returning Officer, the petitioner society filed an appeal before the applicant-tribunal under Section 112 of the Delhi Cooperative Society Act, 2003. .f. The Tribunal issued notices, heard the parties and passed an order on 9th November, 2006 stating inter-alia: So far as the issue regarding the in-eligibility of the members, dis-qualified under Rule 24(2) is concerned, we have studied the instructions and guidelines issued by the RCS wherein such members are barred from participating in the elections. These instructions have also been supported by the Delhi High Court in their judgment dated 07.09.2006 in CWP No. 19967/2004, Nehru Cooperative Group Housing Society Ltd. v. Govt. of NCT of Delhi and Ors. wherein they have issued directions to verify the membership of such persons. In the circumstances, the decision of the R.O. in this respect is quite valid and legal and we uphold it. So far as the point regarding the defaulters is concerned, we feel that the ends of justice would be met if the election programme published by the R.O. is cancelled and the elections are postponed and then are after the accounts for the period ending 31.3.2006 are got audited by the RCS office. After this is done, the R.O. would publish the list of defaulters as on 31.3.2006; considering the legal demands issued prior to that date and thereafter hold fresh election by publishing a fresh programme of election. The defaulters would be allowed to contest and vote in the elections if they pay up the dues before the date fixed for filing nominations or before the date of voting respectively. The defaulters would be allowed to contest and vote in the elections if they pay up the dues before the date fixed for filing nominations or before the date of voting respectively. The Delhi Cooperative Tribunal, thus, ignoring the specific directions passed by the Division Bench of this Court passed the order dated 9th November, 2006, postponed the elections of the petitioner Society for an indefinite period by directing the auditing of the accounts of the Society, thus, in effect stalling the mandate of the High Courts judgment dated 11th May, 2006 for holding of immediate elections. g. A writ petition by the petitioner society was filed challenging the order dated 9th November, 2006 passed by the Cooperative Tribunal,Delhi wherein this Court by the judgment dated 28th March, 2006 quashed and set aside the order of the Tribunal dated 9th November, 2006 and extended the period granted by this Court on 11th May, 2006 by two months from the date of the judgment i.e. 28th March, 2006 and directed that the elections be conducted on or before 3rd June,2007. This is the order which contains the paragraph, reproduced in paragraph 2 above of which modification is sought and the term modification, is nothing but an euphemism for review. 4. The applicant, thus, seeks modification/review on the following grounds amongst others: a) It was the Returning Officers actions which were challenged before the Tribunal. Not treating anybody as defaulter would have amounted to a violation of the provisions of the Cooperative Societies Act and Rules and, therefore, the Returning Officers actions cannot be held to be in "accordance with law" whereas this Court had made specific orders to hold the election "in accordance with law." b) The Tribunal directed elections to be held after the audit of accounts of the society upto 2005-2006 and the defaulters list to be published based on these accounts. Only the petitioner-society and the Returning officer were parties before the Tribunal and they had no objection to the course of action proposed by the tribunal. c) The applicant had facilitated the implementation of the order of the court by directing that the elections should be held in "accordance with law". d) The only purpose of the petitioner association was to participate in elections, even though some of his members were defaulters. c) The applicant had facilitated the implementation of the order of the court by directing that the elections should be held in "accordance with law". d) The only purpose of the petitioner association was to participate in elections, even though some of his members were defaulters. e) It is incorrect on the part of the petitioner to plead that the tribunal had issued some order contradicting this Courts order/directions dated 11th May 2006, as no time limit for holding election was set by the court. The Tribunal had only postponed the date of polling fixed by the Returning Officer. 5. The main ground taken by the applicant-Tribunal is as follows: The Tribunal has not disobeyed the directions of Honble Court in any manner. As directed by this Honble Court, the Registrar of Cooperative Societies had appointed the Returning Officer and it was his actions, which were challenged before the Tribunal. This Honble Court had directed on 11.05.2006 that "The Returning Officer shall proceed to hold the elections immediately thereafter in accordance with law and shall take all necessary steps in that regard for holding early election of the office bearers of the Managing Committee of the Society-" When the Returning Officer proposed not to treat anybody as a defaulter, a new cause of action had arisen. Since Section 112(d) read with Section 35 of the Act gives jurisdiction to the Tribunal to entertain such disputes/appeals the Tribunal admitted the appeal of the society. Not treating anybody as defaulter would have amounted to a violation of the provisions of the Act and Rules and, therefore, the Returning Officers actions can not be held to be in "accordance with law" whereas this Honble Court had made specific orders to hold the election "in accordance with law. However, in view of the fact that the litigants to the original writ petition have not raised such a plea in a challenge to the judgment dated 28th March, 2006, we are of the view that the applicant-Tribunal cannot raise such a plea as it is not even a party to the original writ petitioner. It is also to be noted that even the widest interpretation of the term in accordance with law cannot be construed in any way to postpone the elections indefinitely, as the Tribunal had done by passing the order dated 9th November, 2006. 6. It is also to be noted that even the widest interpretation of the term in accordance with law cannot be construed in any way to postpone the elections indefinitely, as the Tribunal had done by passing the order dated 9th November, 2006. 6. The applicant-Tribunal ignoring the specific directions as passed by the Division Bench of this Court passed an order dated 9th November, 2006 postponing the elections of the petitioner-association. As per the order of this Court the Returning Officer fixed the election programme as per which the election process was to start from 10th of November, 2006 which was the date fixed for issue of nomination forms. However, the applicant-Tribunal cancelled the election programme as published by the Returning Officer and directed that elections would only be held after the accounts for the period ending 31st March, 2006 are audited by the Registrar, Cooperative Societies Office. However, in our view, this course of action would have led to a considerable delay in holding the election programme immediately as directed by the Division Bench by its order dated 11th May, 2006 after expounding in detail the merits of the case. The Tribunal, in an arbitrary manner, cancelled the election programme fixed by the Returning Officer fixed under the mandate of the Division Bench order of this Court and did not fix any time limit for conducting the elections or the conduct of the audit of the accounts. Thus, the Tribunal acted in a cavalier manner by postponing the elections openendedly which was absolutely contradictory to the specific directions of this Court. 7. In light of the above mentioned facts and in consonance with the order dated 28th March, 2007 passed by this Court, we are of the view that the applicant-Tribunal had gone beyond its jurisdiction by directing that the election programme published by the Returning Officer be cancelled and the elections be postponed. Once the Division Bench of this Court had ordered on 11th May, 2006 that the elections of the Managing Committee of the Society should be held immediately, the Tribunal had no power to interfere with an order issued by this Court as the Tribunal functions under the jurisdiction of this Court. The mandate of the Court is bound to be followed by the tribunal and the Tribunal in no way can go beyond the jurisdiction exercised by this Court. The mandate of the Court is bound to be followed by the tribunal and the Tribunal in no way can go beyond the jurisdiction exercised by this Court. Furthermore, we are rather surprised that a quasi judicial authority such as the Delhi Cooperative Tribunal has chosen to enter into a lis when no individual member has been censured. Unless and until strictures against an individual named member have been passed, it is no part of the Tribunals functioning to seek a review/expunction of a portion of the judgment of this Court. In the judicial hierarchy, it is the function and indeed the duty of a writ court to ensure that the authorities, both judicial and quasi judicial function in accordance with law, and taking umbrage at such orders by a quasi judicial authority is not desirable and indeed uncalled for. 8. We are satisfied that the Division Bench of this Court by its order dated 28th March, 2007 had in no way passed any remarks against the applicant-Tribunal which require modification. The Tribunal had gone beyond its jurisdiction by passing an order for the postponement of the elections when the Division Bench of this Court had passed specific directions that the elections of the managing committee of the society be held immediately. This Court while taking note of the above mentioned fact had rightly held that the Tribunal or any other Court subordinate to this Court shall not interfere with the mandate of this Court so as to alter/modify/stay the holding of the elections. 9. In light of the above mentioned observations, the review/modification petition and ancillary applications are wholly devoid of any merits, are dismissed and stands disposed of. The Tribunal not only passed this earlier order dated 9th November, 2006 which effectively set aside the judgment dated 11th May, 2006 of this Court in W.P.(C) NO. 20708/2005 but undeterred by this Courts disapproving its conduct, has now chosen to file the application as a litigant. A quasi-judicial Tribunal functioning under the Act is required to take the reversal of its order in its stride and not to take such reversals as an personal censure/affront so as to file misdirected applications such as the present one. Such a misdirected application would have required that heavy costs amounting to at least Rs. 20,000/- be imposed on the applicant. Such a misdirected application would have required that heavy costs amounting to at least Rs. 20,000/- be imposed on the applicant. However, in view of the quasi-judicial nature of the Tribunal, before we impose any costs, we would like to know as to who authorized the filing of this application. Such an information on affidavit disclosing the identity of the Officer authorizing the filing of this application, be furnished within three weeks from today to this Court and the matter be listed for reporting compliance on 8th August, 2008.