JUDGMENT
J.S. Narang, J.
1. The petitioner i.e. the Labour Bureau Employees Cooperative House Building Society Ltd. is a Cooperative Society registered under the provisions of the Punjab Cooperative Societies Act, 1961, as applicable to the Union Territory of Chandigarh (hereinafter referred to as ‘the Act’). The objects for formulating the aforesaid Cooperative Society have been spe’lt out and so also the procedure for the working and functioning of the Cooperative Society. It goes without saying that the provisions of the Act and the rules framed thereunder are also applicable accordingly.
2. The Chandigarh Administrative issued a notification on May 28, 1991 known as “The Chandigarh Allotment of Land to Cooperative House Building Societies, Scheme, 1991” (hereinafter referred to as “the Scheme”), with a view to promote private housing and optimum utilization of land by constructing multi-storyed structures. Copy of the Scheme has been appended as Annexure P1. The petitioner was found eligible for allotment of land on lease-hold basis for 99 years for construction of flats thereon. As per the conditions spelt out by the petitioner for the members to become eligible for seeking allotment of land, 123 members were found eligible accordingly. A piece of land measuring 3.62 acres was allotted for construction of 123 flats. The design of the construction of the flats was further spelt out by way of categorisation of three categories i.e. category A, B and C. The category- wise break-up of 123 flats which became available is as under:-
Category – A 24
Category – B 73 and
Category – C 26.
3. As per the petitioner, the allotments were to be made by way of draw of lots from amongst the eligible members. It has been provided that an official deputed by the Registrar of Cooperative Societies would witness the draw of lots. Accordingly, the first communication dated August 21, 2000, was addressed to the Registrar for deputing an official accordingly for the draw of lots to be held on 27.8.2000 at 11 a.m. Since no official had been deputed, therefore, the draw of lots could not be held on the scheduled date. Resultantly, another communication dated 30.8.2000, was addressed for the draw of lots to be held on 17.9.2000. Again no one was deputed, therefore, the draw of lots could not be held. Despite a number of communications having been addressed the Registrar Cooperative Societies, no communication appointing the official was received. However, communication dated 22.10.2000, was received from the Registrar, Cooperative Societies directing that the draw of lots scheduled to be held on 22.10.2000 is stayed til! further orders. Copy of the order has been appended as Annexure P8. The aforesaid order was objected to by a communication dated 22.11.2000, addressed by the petitioner. Again a communication was received from the Registrar of Cooperative Societies dated 14.12.2000, vide which it has been disclosed to the Society that some of the expelled members have filed appeals which are pending before the Joint Registrar, Co-operative Societies and that if the Society is keen to go on with the draw of lots then the said members should be treated as normal members and resultantly entitled to be allotted a flat. It is further stated that in case any default is attributed to the said members, the same can be accepted as per the bye-laws of the Society. The petitioner had been directed to act upon one option out of the two. The petitioner addressed a communication dated December 14, 2000 to the Joint Registrar, Cooperative Societies explaining that the dispute is only for category “A” as both the alleged defaulting members i.e. Smt. Anita Verma and Smt. Gurmit Kaur belong to category “A” only. As such, the draw of lots will be held only for category “B and C” as per the schedule. However, the draw of lots for category-A will be held after the decision of the appeal by the Joint Registrar Cooperative Societies. Resultantly, approval had been granted for draw of lots relating to categories-B and C only as per the schedule. Copy of the communication has been appended as Annexure P12.
4. Another communication dated December 29, 2000, was received holding that the general body meeting of the petitioner held on 15.12.2000, has been declared null and void as the proper procedure had not been adopted by the management of the Society at the time of draw of lots. Copy of the communication has been appended as Annexure PI3. Again a request was made by the petitioner for holding draw of lots once again in respect of categories-B and C. The requisite permission was granted by the Registrar Cooperative Societies vide communication dated 13.3.2001, copy annexure PI5. The draw of lots was scheduled to be held on March 31, 2001.
5. However, a representation was made by the defaulter members Smt. Anita Verma and Smt. Gurmit Kaur and upon representation a communication dated 29.3.2000, was addressed to the petitioner directing that the names of the said members be included with the condition that they will be entitled to get the possession of the dwelling units. Another member Shri Prem Lal Gill had also filed an appeal before the Registrar Cooperative Societies but being a defaulter member was not allegedly entitled to stake claim in the draw of lots. However, he filed C.R. No. 533 of 2001 under-Articles 227 of the Constitution of India before this Court, seeking a direction that the appeal filed by him be decided before the draw of lots or alternatively the stay applications be considered and that the relief be granted accordingly. The revision petition was disposed of vide order dated April 5, 2001 by R.L. Anand, J. and that the order reads as under:-
“In the High Court for the States of Punjab and Haryana, Chandigarh.
Civil Revision No. 533 of 2001
Prem Lal Gill son of Shri……
Membership No. 246, Labour Bureau Employees
Cooperative Housing Building Society Limited
S.C.O. No. 28-31, Sector 17-B, Chandigarh.
Versus
1. The Joint Registrar, Cooperative Societies, Chandigarh.
2. The Labour Bureau Employees Cooperative House Building Society Ltd., S.C.O. No. 28-31, Sector 17-B, Chandigarh.
Civil Revision under Article 227 of the Constitution of India for
It is, therefore, respectfully prayed that in view of the above facts and circumstances of the case necessary directions may kindly be issued to he respondents either to decide the appeal under Bye law 11-B of the Labour Bureau Employees Co-operative House Building Society Ltd. or to decide the stay application during the pendency of the appeal so that the petitioner may be considered as member of the respondent No. 2 society and further be considered in draw of lots, which are likely to be filled shortly in the interest of justice.
C.M. No. 5742 of 2001 in
Civil Revision No. 533 of 2001
Present: Mr. V.K.. Jindal, Advocate for the petitioner.
Mr. K.K. Gupta, Advocate, for respondent No. 1.
Mr. D.V. Sharma, Advocate for respondent No. 2.
It is stated at the bar by the learned Counsel for the parties that against the order of expulsion the petitioner has also filed an appeal before the Joint Registrar, Cooperative Societies, Chandigarh and on 28.3.2001 time has been extended by the High Court for one month for disposal of the appeal.
This application stands disposed of with the direction to respondent No. I to decide the appeal on or before 28.4.2001 and no further extension shall be given.
The learned Counsel appearing on behalf of respondent No. 2 submits that his client has no objection if during the pendency of the appeal of the petitioner before the Joint Registrar his expulsion is stayed by the High Court. Resultantly, the expulsion of the petitioner till the disposal of the appeal before the Joint Registrar is hereby stayed with the observations that the petitioner shall not be deprived of from the ordinary rights of a member of the Society.
The parties shall appear before the Joint Registrar, Cooperative Societies, Chandigarh on 16.4.2001 so that the directions of this Court may be complied with by the Joint Registrar.
5.4.2001,
Sd/- R.L. Anand,
Judge”
6. The expulsion of the petitioner had been stayed by this Court and, thereof, the petitioner in the said revision petition i.e. Shri Prem Lal Gill was treated at par with other members of the Society. It seems that the draw of lots scheduled to be held on 31.3.2001, had been stayed but after the passing of the aforesaid order by this Court, the draw of lots was scheduled to be held on 23.4.2001.
7. Surprisingly, a communication dated April 22, 2001, had been issued observing that the proposed draw of lots cannot be held until the appeal of Shri P.L. Gill pending before the Joint Registrar, Cooperative Societies, is decided. The communication reads as under:-
From
The Registrar, Cooperative Societies,
U.T. Chandigarh.
To
The President/Secretary,
Labour Bureau Employees Cooperative House
Building Society Ltd.,
S.C.O. 28-31, Sector 17-A,
Chandigarh.
Memo No. 24 dated 20.4.2001
Subject: Deputing an observer witnessing the draw of lots to be held on 24.4.2001.
Reference your letter No. HBS/LB/5/2001 dated 5.4.2001 regarding above noted subject.
You are hereby informed that the proposed draw of lots cannot be held until the appeal of Shri P.L. Gill pending before the Joint Registrar, Cooperative Societies is decided.
You are, therefore, directed not to hold the draw of lots as proposed and wait for the decision of the aforesaid appeal. Please acknowledge its receipt.
Sd/- J.R.C.S.
For Registrar
Cooperative Societies,
U.T. Chandigarh. Endst. No. Dated the…..
A copy is forwarded to Shri Amarjit Singh, Inspector Cooperative Societies for information and necessary action.
He should ensure that the above orders are fully, complied with by the management of the Society.
Sd/- J.R.C.S.
For Registrar,
Cooperative Societies,
U.T. Chandigarh.”
However, in view of the order passed by this Court, draw of lots was held on the scheduled date treating Shri P.L. Gill, a regular member and entitled to allotment of flat by way of draw of lots.
8. The petitioner received the impugned order dated April 21, 2001 passed by the Registrar, Cooperative Societies, copy Annexure P25. It has been categorically observed that despite the communication dated April 20, 2001, the draw of lots has been held, therefore, the allotment made accordingly is null and void and that additionally in view of condition No. 10 of the scheme, the draw of lots could not have taken place in the absence of the authorised official of the Cooperative Department. Thus, the Registrar Cooperative Societies, has observed that in exercise of the powers contained in Rule 80 of the Punjab Cooperative Societies Rules, 1963 (hereinafter referred to as the “Rules”) as applicable to U.T. Chandigarh, the resolution regarding draw of lots is annulled which had been held on April 22, 2001.
9. The petitioner aggrieved of the order has filed the present petition and has challenged the order date 27.4.2001 passed by the Registrar, Cooperative Societies, Chandigarh. Upon notice of motion, written statement has been filed by respondents No. 1 to 7, 8 and 9 and 10 (respondents No. 9 and 10 had been added as respondents vide order dated 31.8.2001 passed by this Court). The petition had been admitted vide order dated May 3, 2001 and that notice regarding stay had been issued and in the meanwhile the impugned order dated 27.4.2001 had been stayed. The matter regarding stay was posted before this Court. However, with the concensus of learned Counsel for the parties, it was decided that it shall be in the interest of all if the petition is decided finally instead of hearing the counsel at length for making the interim order absolute. Accordingly, the petition is being disposed of finally.
10. Learned Counsel for the petitioner has argued that the petitioner had sent number of communications to the Registrar of Cooperative Societies for deputing an official to be present at the time of draw of lots being held in respect of allotment of 123 flats but due to one reason or the other, the officials were not appointed and when appointed certain conditions had been imposed which had been agreed to by the petitioner and resultantly all the members including the defaulters were considered while holding draw of lots. Resultantly, they were allotted the plots which fell to their lots in the draw. It is strange that despite the order of expulsion having been stayed by this Court and resul-tantly entitling Shri Prem Lal Gill, in view of the concession made by the petitioner before this Court in the revision petition, to claim all his rights as member of the Society, the Registrar of Cooperative Societies created an impediment that the draw of lots cannot be held until the appeal of Shri P.L. Gill pending before fhe Joint Registrar, Cooperative Societies is decided. It is not understandable under what provisions the order of this Court passed in the civil revision can be undermined or dewatered especially when the right of Shri P.L. Gill for his entitlement to allotment of flat by way of draw of lots could not be denied by the petitioner. Since the order dated April 20, 2001, is not est in view of the order dated April 5, 2001 passed by this Court no illegality can be said to have been committed while holding draw of lots on the date fixed. Since the order dated April 20, 2001, is illegal, the Society was not required to adhere to the said order.
11. It has been further argued that admittedly in accordance with Clause 10 of the scheme, the draw of lots was required to be witnessed by an authorised officiaI/officer of the Cooperative Department but the society having sent numerous communications and the last communication also having been addressed to the Registrar of Cooperative Societies, the absence of such official would not nullify the draw of lots in any manner. Clause 10 of the Scheme only envisaged that it shall be witnessed by an authorised official/officer of the Cooperative Department and that in no manner any participation is required to be made by him. It is contended that he was required to be present as an Observer only. It is further contended that absence of such a witness/observer would in no manner nullify the proceedings in which draw of lots has been held.
12. It is further argued that even otherwise the order dated 20.4.2001 is non est as Shri P.L. Gill dehors of the disqualification earned by him was allowed to participate in the draw of lots held accordingly. If such member does not participate in the meeting, the meeting cannot be said to be illegal. His name had been included in the draw and he has been allotted flat No. 86 virtue of the draw of lots.
13. It is further argued that the impugned order is otherwise not sustainable because Rule 80 under which the power has been exercised by the Registrar of Cooperative Societies, is not applicable to the facts of this case Chandigarh as the said rule as promulgated for a different purpose as none of the said alleged violations can be said to be violative of the provisions as contained in the said rule. The reason mentioned in the order is entirely different as such exercise of such power is not sustainable under law and the order, therefore, deserves to be quashed on this ground as well.
14. It is contended that the order dated April 20, 2001 seems to have been passed by the officer concerned without noticing the order dated April 5, 2001, passed by this Court as aforesaid. Had the said other been noticed no such order could have been passed by the Joint Registrar, Cooperative Societies, Chandigarh. Likewise, the Registrar, Cooperative Societies has also not noticed the order passed by this Court on 5.4.2001 and has also not even noticed that Shri Prem Lal Gill had been allowed to exercise all his rights as a member of the Society and was included in the draw of lots in respect of the flats and he has been allotted a flat as per the draw of lots. Since the orders passed by the authorities had not spelt out judicious approach but more or less executive approach.
15. On the other hand, learned Counsel for the respondents have argued that the draw of lots suffers from the inherent defect because as per Clause 10 of the scheme the draw of lots was mandatorily required to be witnessed by the representative from the office of Registrar of Cooperative Societies. Since has been admitted by the petitioner that no representative was present, the draw of lots, therefore, is not sustainable as the condition precedent provided under the scheme has not been adhered to. Thus, the order dated April 20, 2001, vide which the draw of lots had been stayed and the Order dated April 27, 2001 are good in all respects and the resolution vide which the allotment of dwelling units has been passed, has been correctly annulled. It has always been the stand of the Cooperative Department that during the pendency of the appeal, no draw of lots shall take place. This Court had categorically extended the period upto 28.4.2001, therefore, the draw of lots could not have been held prior to that date. It became obligatory on the part of the petitioner to have awaited the decision in the appeal which was scheduled to be decided on or before 28.4.2001. The Cooperative Department was justified in staying the holding of draw of lots prior to the decision of the appeal. The Registrar of Cooperative Societies is competent and entitled to pass such orders and is obligated to see that proper procedure is followed at the time of passing of the resolution.
16. In the case at hand, the draw of lots could not have taken place but despite the stay granted by the Cooperative Department, the draw of lots was allowed to take place and the allotments made accordingly. It is further argued that all the objections relating to the convening of the meeting legally and in accordance with the correct facts projected before the members could not be made available to the witness as none was present in view of the order dated 20.4.2001 passed by the Cooperative Department. These deficiencies could only be pointed out to the representative of the Cooperative Society who was categorically required to be deputed to witness the proceedings of the meeting. Such right having been denied to the members, the meeting has been therefore, correctly annulled by the Registrar, Cooperative Societies. This fact has been categorically noticed by the Registrar Cooperative Societies while passing the order.
17. So far as the argument that the order has not been passed under the correct provision, the powers have been conferred upon the Registrar of Cooperative Societies under Rule 45 of the Rules. The rule envisages that the Registrar may from time to time give directions consistent with the provisions of the Act as he may consider necessary for the beneficial and efficient functioning of any of the Cooperative Societies. If the question arises as to whether such directions are necessary or are in the interest of the Society, such question may be referred to the Government whose decision thereon shall be final. Since the Registrar had categorically said that the draw of lots shall not take place till the appeal filed by Shri Prem Lal Gill is decided, the petitioner was obligated not to hold draw of lots till the appeal was heard and decided. It is contended that wrong mentioning of the provision would not oust the powers of the authority. It is contended that the apex Court has categorically observed in re: Union of India and Anr. v. Tulsiram Patel, 1985(2) S.L.R. 576 at page 588, that wrong mentioning of a provision cannot oust the jurisdiction of the authority.
18. It has been further argued that in fact one or two members had died and their names have been included in the draw of lots and against their names the signatures of some persons have been shown. All these facts could have been brought to the notice of the witness required to be present at that time but for want of presence of the witness, this right could not be exercised. It is argued that in view of the above, the petition in fact deserves to be dismissed as the rights of the members, as honoured to be exercised before this Court, were not fully honoured as the right to bring the flaws to the notice of the representative of the Cooperative Department had been denied. The power exercised by the Registrar of Cooperative Societies in staying the holding of the meetings as envisaged under the rules has been violated. Thus, the Registrar Cooperative Societies has acted within the frame-work of provisions of law and has, therefore, correctly annulled the resolution passed by the general body meeting of the petitioner. In this view of the matter, the petition, therefore, deserves to be dismissed,
19. After hearing the learned Counsel for the parties and perusal of the respective pleadings and the documents placed on record, I am of the view that Registrar of Cooperative Societies has not applied her mind by keeping in view the previous communication dated December 14, 2000 vide which the Cooperative Department had given two options to the petitioner; firstly wait for the orders of the Joint Registrar, Cooperative Societies in case of the appeal filed by the members and secondly; that the members should be treated as full fledged members and the petitioner may go ahead with the draw of lots. The petitioner while appearing before this Court in C.R. No. 533 of 2001 categorically stated that the petitioner shall have no objection if during the pendency of the appeal of the member before the Joint Registrar, his expulsion is stayed by the High Court. Resultantly, the expulsion of the petitioner till the disposal of the appeal by the Joint Registrar had been stayed and it had been clarified that the member i.e. Shri Prem Lal Gill shall not be deprived of from ordinary rights of a member of the Society. In view of this, his name was included while making the draw of lots. It is obvious that the second alternative as propounded by the Cooperative Societies in respect of other members was adhered to. In this view of the matter, Cooperative Department was not justified in staying the draw of lots till the decision of the appeal. It can be obviously inferred that the Cooperative Department made effort to circumvent and dewater the order passed by this Court despite the fact that respondent No. 1 i.e. Cooperative Department was also represented before this Court. The import of the communication dated April 20, 2001, copy Annexure P22 does not spell out the correct perspective in which the orders are expected to be passed, the Joint Registrar Cooperative Societies was under obligation to refer to the order passed by this Court in the aforesaid revision petition which was ordered on April 5, 2001 i.e. much prior to the order passed by the Joint Registrar. The non-mentioning or not noticing the order of this court spells out the mind with which the order has been passed.
20. Apart from this, the Registrar of Cooperative Societies has also not applied mind while passing the impugned order dated April 27, 2001, It has not been noticed by the Registrar that two options had already been given to the petitioner to be followed in the case of the defaulting members who had also filed the appeals before the Registrar of Cooperative Societies. Shri P.L. Gill was given the similar treatment as is evident from the order passed by this Court whereby the right of the member has been categorically protected by granting the interim order till the decision of the appeal. The Registrar did not go into the facts as to why the order dated April 20, 2001, had been passed by the Joint Registrar of Cooperative Societies.
21. So far as reference to Clause 10 of the Scheme is concerned, the perusal of the same shows that the representative of the Cooperative Department is only required to witness the proceedings. He is not required to pass any orders. The purpose and object is that the proceeding in a meeting should be held smoothly. The members are well within their right to question the legality of the meetings before the appropriate authority. The requirement under the above said clause cannot mean to give authority through the representative to the Cooperative Department for holding of the meeting by the Cooperative Society. If absolute meaning is attributed that without the witness deputed by the Cooperative Department, the meeting held would be null and void, the very democratic purpose and object would be lost. The Cooperative Department may or may not appoint a representative any time and every time, would that mean that the Cooperative Society shall not be entitled to hold the meeting. It is for this reason that the requirement promulgated in the clause is that he shall only witness the proceedings so that the same are held peacefully and smoothly. Apart from this, he has no role to play. If any member is dissatisfied in any manner, he has the remedy by way of initiating proceedings before the appropriate authority provided under the statute. Thus, making this clause as the base and setting aside the resolution passed in the meeting is not sustainable.
22. So far as the communication dated 20.4.2001 is concerned, vide which the petitioner had been prohibited from conducting the draw of lots, does not spell out good reasons especially in view of the order passed by this Court on 5.4.2001. Thus, this ground was also not available to the Registrar for passing the impugned order.
23. The power has been exercised by making reference to Rule 80 of the Rules. The perusal of the rules shows that it is meant for different circumstances and the situations as spelt out in the rules. However, a reference has been made to Rule 45 where by the residuary powers have been given to the Registrar of Cooperative Societies. It is the settled law that wrong mentioning of a provision would not take away the jurisdiction of the authority. In view of the dicta of the apex Court in Tulsi Ram Patel’s case (supra), this argument of the petitioner fails and is rejected.
24. Learned Counsel for the respondents addressed arguments to the effect that names of some dead persons have been projected in the document vide which the allotment of the flats have been made. I am afraid the respondent is not entitled to claim negative relief against the petitioner for adhering to the remedy provided under law. However, the respondent is at liberty to adopt such remedy as provided under law is this regard, if so advised.
25. In view of the above, the petition is allowed and the impugned order passed by
the Registrar Cooperative Societies Annexure P25 having been based on communication
dated 20.4.2001 Annexure P24 is quashed. Resultantly, the allotment made by the petitioner is upheld subject to the rights of the respondents which have been left open, if
available under law as aforesaid. No order as to costs.