JUDGMENT
Vijender Jain, J.
1. This writ petition filed by the society challenges the order passed on 13.5.1994 by respondent no.3, the Delhi Co-operative Societies Tribunal; order dated 8.3.1994 passed by respondent no.5, Deputy Registrar (Arbitration), Office of the Registrar of Co-operative Societies, order dated 23.4.1992 and 29.6.1992 passed by respondent no.4, Joint Registrar (Arbitration) and order dated 12.4.1999 passed by the Lt. Governor of Delhi. Earlier the society also had litigation with the Office of the Registrar of Societies challenging its order superseding the Managing Committee of the society, we need not go into the details of that litigation.
2. The case of petitioner society with regard to respondent no.6 is that about 100 members including respondent no.6 had been in default and therefore, after due notice in accordance with the resolution of the General Body they had been removed from the list of members. During the pendency of the proceedings filed by the society being CWP NO.661/1980 against purported action of the Registrar of Societies, to supersede the managing committee, it seems respondent no.6 filed an application which was CM No.1613/1981. Orders passed in the said CM by the Division Bench of this Court would be relevant for disposal of the present controversy which is reproduced below :-
“ANNEXURE – P/6
CWP No. 661/1980
27.2.87
Present : Mr.Daljit Singh for the petitioner.
Mr.N.K. Jaggi for some of the applicants.
Mr.Ramesh Chandra for some of the applicants.
CM 1613/81
This is an application by one Mr.K.R. Chopra. He says, that he became a member of the Society in 1966 and was wrongly expelled in the same year or 1967. According to the Society, this gentleman was expelled because he did not pay the full amount demanded from him. Thereafter, admittedly, the Society sent him a cheque for returning the amount which he had sent to the Society. The cheque was not cashed.
According to Mr.Chopra, he approached the Registrar of Cooperative Societies for reference of the dispute, regarding his expulsion, to Arbitration. This was some time in 1973. For the next eight years, till 1981 nothing seems to have happened. Mr.Chopra has stated in one of his affidavits, that he was constantly making personal enquiries from the appropriate officers, and was told that the proceedings would take their due course. However, it now emerges, that in fact arbitration proceedings did not ever actually commence. This is apparent from the letter at Annexure-C to the affidavit dated 5th March, 1986 sworn by Mr.Chopra. In this letter the Assistant Registrar, Co-operative Societies, has said that as per the records of his office no arbitration case in the name of Mr.K.R. Chopra Vs. The Friends Central Government Employees Co-operative House Building Society Ltd., New Delhi appears to have been started in the year 1973.
It is thus clear, that from 1973 to 1981 the applicant took no steps to have his expulsion set aside. Mr.Jaggi wanted to persuade us that there was in fact no expulsion because no such meeting, as alleged by the Society, was in fact held. This, and the other points be sought to argue, involve disputed questions of fact and cannot possibly be resolved without a regular trial. Such questions cannot be properly dealt with in these proceedings. In any case, we do not think that we should come to the aid of the applicant, in exercise of our jurisdiction under Article 226 of the Constitution, considering that he himself has been so negligent in seeking his remedy.
For these reasons, this application is dismissed, There will be no order as to costs.
Sd/- T.P.S. Chawla,
Chief Justice.
27.2.1987
Sd/- S.S. Chadha
Judge.”
3. It seems after the order passed by the Division Bench in the aforesaid application on 27.2.1987, respondent no.6 filed an application with the Registrar of the Co-operative Societies for referring the disputes for arbitration. On 25.11.1988, the Joint Registrar, Co-operative Societies passed an order holding that the application of respondent no.6 was not maintainable as the same was barred by time and the same was without jurisdiction and the application was thus dismissed.
4. Aggrieved by the said order respondent no.6 filed an appeal before the Co-operative Tribunal. The Co-operative Tribunal vide its order dated 20.1.1989 held that the appeal was not maintainable in view of the Section 76 of the Co-operative Societies Act and dismissed the same. Respondent no.6 thereafter filed an appeal before the Lt. Governor, which was also not maintainable as only a revision was maintainable against the orders dated 25.11.1988 of Joint Registrar, however, his appeal was treated as revision under Section 80 of the Act and disposed of by order dated 12.4.1989. As lot of controversy has been generated in respect of the order passed by the Lt. Governor it would be appropriate to reproduce the operative part of the order :-
“I have carefully considered the points raised the appellant and have also perused the material on record. The appellant has placed before me a copy of bye-law 7 of the Society wherein the procedure has been prescribed as to how a member of the society should be expelled. He has also shown me a copy of the regd. AD letter sent by him on 21.4.1973 from Bhatinda to the Registrar, Co-operative Societies, Old Secretariat, Delhi, wherein he has referred to the letter of 2.12.1971 which was his original claim. It was incumbent on the part of the Registrar to have replied to the petitioner in the year 1973 for filing a claim on the prescribed form and also the required arbitration fee as pointed out by the Joint Registrar in his order.
The matter has been pending with the Registrar from the year 1971. No doubt, the limitation for filing of the claim under section 60 in such a case has been fixed as 6 years, but at the same time the Registrar has the power under sub-section 4 (c) to admit a dispute after the expiry of limitation if the applicant satisfies that he had sufficient cause for not referring the dispute within such period. To me, it appears that the earlier application submitted by the petitioner in the year 1971 was within time limit. He has also reminded the Registrar in the year 1973 as well. He could only deposit the arbitration fee when he was directed to do so. Hence, the finding of the Joint Registrar that the petitioner has not deposited the arbitration prior to 73 does not appear to me a sound one and sustainable in law. I feel, it is a fit case to be remanded to the Registrar for determining the matter afresh. I hold accordingly. The case is hereby remanded to the Registrar for fresh disposal.”
5. Thereafter the petitioner society filed a writ petition in the High Court being CWP NO.2109/1989 which was dismissed on 1.4.1992 without a speaking order. In the meanwhile, after dismissal of the writ petition of the society by this Court, a notice was sent by the Registrar, Co-operative Societies dated 21.4.1992 fixing the next date of hearing on 23.4.1992. On 23.4.1992, Joint Registrar, Co-operative Society pursuant to order dated 12.4.1989 of the Lt. Governor whereby matter was remanded for determination afresh, considered the matter in absence of society and passed the order holding that all the conditions necessary to admit an application under Section 60 of the Act were satisfied and the case was fit for arbitration. Though, the matter was remanded for afresh decision, however, while passing order on 23.4.1992, the Joint Registrar did not consider and adjudicate the application of respondent No.6 being time barred.
6. It was contended before us by learned counsel for the petitioner Mr.Daljeet Singh that notice issued on 21.4.1992 by registered post for hearing on 23.4.1992 was not received by the petitioner and when the petitioner came to know about hearing on 23.4.1992 and an order passed on that date in their absence, he moved an application for setting aside the order passed by the Registrar on 23.4.1992. That application of the petitioner was considered by the Registrar, Co-operative Societies and the following order was passed:-
Present : Mr.G.R. Matta, counsel for the Society Along with Mr.S.D. Kapoor, Secretary of the Society.
Mr.R.N. Bhardwaj- counsel for the claimant.
Mr. Matta has filed an application stating that the JR (ARB) had issued the notice on 21.4.92, whereas the date of hearing as per the notice was given as 23.4.92 and the said notice didn’t reach the society and that he was deprived of the opportunity of being heard; he has requested that this mistake may be corrected at this stage. I do feel that the point raised by Mr.Matta has got substance, yet it couldn’t be considered at this stage and it also appears to be beyond my jurisdiction; therefore, the request of Mr.Matta on this point is rejected. However, his submission that he would argue the case is entertained and accordingly the parties are allowed to argue the case further on 1.9.93 at 3.00 PM.
sd-
(B.L. Sharma)
Dy. Registrar (Arb.)”
7. It was contended before us that when the notice was not received by the petitioner he could not appear before the Registrar on 23.4.1992 and therefore, no opportunity was given and the petitioner was deprived of the opportunity of being heard. He further contended that in view of the peculiar facts and circumstances of the case that a list of members had already been drawn and approved by the High Court and that the claim of the respondent no.6 was barred by limitation, he would have persuaded the Registrar, Co-operative Societies that it was not a fit case for reference to arbitration under Section 60 of the Co-operative Societies Act. Mr.Singh further contended that the order passed by the Registrar, Co-operative Societies which is at page 108 of the paper book, although admitted that the point raised by the petitioner society had substance but no order was passed considering the pleas of the society that the matter could not be referred to Arbitration.
8. The petitioner before the Arbitrator appointed by the Registrar, again took up the plea that the claim of respondent no.6 was time barred apart from other plea taken by the petitioner. The Arbitrator in view of the order passed by the Lt. Governor as reproduced above held that the question of limitation cannot be reopened again as the Lt. Governor had although remanded the case for decision afresh but he had almost decided the question of limitation by stating that the application filed by the claimant in the year 1971 was within time. Mr.Singh has contended that he has been deprived of being heard personally at the stage of reference being made by the Registrar. In view of an order passed by the High Court in CWP No.661/1980 on an application filed by respondent no.6 wherein it was held that respondent no.6 was negligent and he did not take any steps from 1973 to 1981 for adjudication of his expulsion by the petitioner’s society as provided or contemplated under Section 60 of the Co-operative Societies Act, 1972 and, therefore, the Registrar did not have jurisdiction to refer the disputes for arbitration. Secondly, it was contended before us that that issue was raised by the petitioner which find reflection in the impugned orders that he was not served before the Joint Registrar and without deciding the claim of respondent no.6 being barred by limitation, merely in view of the order passed by the Lt. Governor referred the disputes for arbitration. The petitioner contends that he raised this dispute about the claim of respondent no.6 being time barred before Arbitrator and Co-operative Tribunal who also did not decide it on account of observations made by the Lt. Governor while remanding the matter for decision afresh by his order dated 12.4.1989.
9. On the other hand Mr.Saini appearing on behalf of respondent no.6 has contended that having participated in the arbitration proceedings, it is not open to the petitioner to challenge the order passed either by the Arbitrator or by the Co-operative Tribunal. It is further contended that from the order passed by the Registrar, Co-operative Societies referring the dispute for arbitration, no appeal or revision was filed by the petitioner before the appropriate forum and, therefore, it cannot be said that the finding of the Registrar, Co-operative Societies to refer the matter for arbitration suffers from any vice. Learned counsel for respondent no.6 has further contended that as a matter of fact the petitioner has waived his right and acquiesced to the award made by the Arbitrator on merits, therefore, no fault can be found with the finding of the award. Mr.Saini has contended that the order dated 12.4.1989, passed by the Lt. Governor had condoned the delay if there was any and, therefore, it was no more res-integra before the Arbitrator to have given a finding other than what has been given by the Lt. Governor in this regard. According to Mr.Saini, the Lt. Governor had specifically held that respondent no.6 had moved an application in the year 1971 before the Registrar, Co-operative Societies and, therefore, his application was to be treated within time. He further contends that order dated 12.4.1989 was challenged by the petitioner by way of a writ petition which was dismissed and, therefore, the petitioners are estopped from agitating the point of limitation in this petition.
10. We have given our careful consideration to the arguments advanced by counsel for both the parties. Let us first analyze the order passed by the Lt. Governor as the arguments revolve around the interpretation of the Lt. Governor’s order dated 12.4.1989. The Lt. Governor in his said order has observed that an application was filed by respondent no.6 in the year 1971 before the Registrar and therefore, the claim of respondent no.6 challenging his expulsion is within time limit. However, if we see the averments made by respondent no.6 in the application CM NO.1613/1981 which was filed by respondent no.6 in CWP NO.661/1980, he has averred in para 7 of the application that he had filed an application in 1971 to the Assistant Housing Commissioner, Land and Building Department, Delhi Administration. When respondent no.6 had submitted an application to the Assistant Housing Commissioner, the finding of respondent no.2 that said application was sent to the Registrar, Co-operative Societies, shows non-application of mind on behalf of respondent no.2. The basic premise on which respondent no.2 passed the order dated 12.4.1989, was that an application had been submitted to the Office of the Registrar, Co-operative Societies. Once that premise is established to be incorrect, even the order will fall on ground and once that order is non-existence no relief can be granted on the basis of the said order which was on the basis of a wrong premise. Once the order is non-est in the eyes of law, reliance on such order placed by the respondents will vitiate the orders passed by them. Even if it is assumed that respondent no.2 had condoned the delay, he had not decided that issue finally as he had remanded the case back for determining the matter afresh. When an order of remand is made to consider the matter afresh that cannot be construed to mean that the matter had to be considered on other pleas only and not on the question of limitation. If the matter was remanded for determination afresh but not on plea of limitation, then the order of remand should have specifically stipulated so which was not done in this regard. So on this ground also respondent no.6 does not get any help from the order passed by respondent no.2.
11. We find that at every possible stage, the petitioner has raised the point of limitation before the Registrar, before the Arbitrator and finally before the Tribunal and to our dismay we find argument has been lightly brushed aside. We are saying so in view of the fact that it has been noticed in the order of the Arbitrator that certain matter pertaining to the society and the members and eligible members who were entitled for allotment was pending before this Court where the final list was prepared and without taking that list into consideration in which the name of respondent no.7 was also appearing, the order has been passed in a mechanical manner about respondent no.6. Although a controversy has been raised with regard to the appearance of counsel appearing for respondent no.6 in CWP No.661/1980 which is at page 58 of the paper book where Mr.S.S. Gandhi appeared for Mr.Ramesh Chandra who was counsel for applicants. A Division Bench of this Court on 22.5.1981 directed that 270 members mentioned in the list, Annexure P/31 shall constitute the final list of eligible members for allotment of plots according to their seniority in enrollment in chronological order. To avoid any further controversy and dispute the Division Bench in CWP NO.661/1980 recorded on behalf of respondent no.6 through his counsel his consent to this settlement recorded on 22.5.1981, and held that his application be taken up later on, which the Division Bench did on 27.2.1987, holding that applicant took no steps to have his expulsion set aside from 1973 to 1981 and the Court should not exercise its jurisdiction, as respondent no.6 was negligent and did not modify or challenge the settlement arrived at on 22.5.1981.
12. Mr.Saini has tried to argue that his application was not dismissed on that point. The respondent no.6 was present through his counsel and did not oppose the settlement recorded in the Court. We do not approve the conduct of respondent no.6 in the facts and circumstances. Respondent no.6 is a defaulter, he did not pay the amount, did not prosecute the matter diligently as was also observed by the Division Bench in its order dated 27.2.1987. It is almost 40 years has passed since respondent no.6 was expelled in 1967. Respondent no.7 would be affected if the impugned orders are sustained which allotted plot to respondent no.6, though respondent no.7 was a member since 1977 who has been allotted plot on 6.4.1992 according to his seniority. In the result, we set aside the impugned orders as stated in the prayer clause.
13. Rule is made absolute. Writ petition is allowed.
14. We have been told that in view of the pendency of the writ petition lease deed has not been executed and possession of the plot has not been given to respondent no.7. We direct the respondent-Society to hand over the possession and execute the necessary lease deed in favor of respondent no.7. In the facts and circumstances, parties are left to bear their own costs.