JUDGMENT
R.C. Lahoti, J.
(1) The petitioner was member of a Co-operative Group Housing Society, the respondent No.l. The Society passed a resolution expelling the petitioner from the membership of the Society. The expulsion has been approved by the Registrar of Co-operative Societies. This petition has been filed challenging the order of expulsion passed by the Society and order of approval passed by the Registrar.
(2) On behalf of the respondents a preliminary objection to the maintainability of the petition has been raised submitting that the impugned orders being appealable and revisable respectively the High Court would not entertain a petition in exercise of its extraordinary writ jurisdiction, the petitioner having failed to avail an efficacious alternate remedy available to him under the Act.
(3) We may notice the relevant provisions of law.
3.1A Co-operative Society is competent to pass a resolution expelling its member in specified circumstances. Section 76 of the Delhi Co-operative Societies Act, 1972 (hereinafter referred to as ‘the Act’) contemplates an appeal. The relevant provisions are extracted and reproduced hereunder :- 76. Appeals (1) Subject to the provisions of section 77, an appeal shall lie under this section against – (a) (b) (c) (d) (e) a decision of a co-operative society expelling any of its members; (f) (g) (h) (i) (j) (k) (1) (2) An appeal against any decision or order under sub-section (1) shall be made within sixty days from the date of the decision or order- (a) if the decision or order falls under clause (g), (h), (i) or (1) of sub-section (l),to the Tribunal; (b) if the decision or order falls under clause (f),to the Lieutenant 72 Governor; (c) in any other case, to the Lieutenant-Governor or the Registrar according as the decision or order was made by the Registrar or any other person. (3) No appeal shall lie under this section from any decision or order made by the Registrar in appeal.”
3.2Section 80 of the Act provides for power of revision which may be exercised suo motu or on application of a party. It reads as under :- 80. Revision “SUBJECT to the provisions of section 77, the Lieutenant-Governor may, suo motu or on the application of a party to a reference, call for and examine the record of any proceedings in which no appeal lies to the Lieutenant Governor under Section 76 (not being any proceedings in which an appeal lies to the Tribunal) for the purpose of satisfying himself as to the legality and propriety of any decision or order passed and if any case it shall appear to him that any such decision or order should be modified, annulled or revised, he may pass such order thereon as he may deem fit.”
3.3Rules have been framed by the Lt.Governor in exercise of the powers conferred by Section 97 of the Delhi Co-operative Societies Act, 1972 which are known as the Delhi Co-operative Societies Rules, 1973 (hereinafter ‘Rules’, for short). Rule 36 contemplates a resolution being passed by the Society expelling any member from membership. Sub-Rules (1) to (3) provide as under :-
“(1)Notwithstanding anything contained in the bye-laws, any member who has been persistently defaulting in payment of his dues or the payment of claim made by a housing society for raising funds to fulfill its objects, has been failing to comply with the provisions of the bye- law regarding sales of his produce through the society or, other matter in connection with his dealings with the society or who, in the opinion of the committee, has brought disrepute to the society or he has done other acts detrimental to the interest or proper working of the society or he has done other acts detrimental to the interest or proper working of the society, the society may, by a resolution passed by a majority of not less than three fourth of the members entitled to vote who are present at a general meeting, held for the purpose, expel a member from the society.
PROVIDED that no resolution shall be valid, unless that member concerned has been given an opportunity of representing his case to the general body and no resolution shall be effective, unless it is approved by the Registrar.
(2)Where any member of a co-operative society proposes to bring a resolution for expulsion of any other member, he shall give a written notice thereof to the President of the Society. On receipt of such notice or when the committee itself decides to bring in such resolution, the consideration of such resolution shall be included in the agenda for the next general meeting and a notice thereof shall be given to the member against whom such resolution is proposed to be brought, calling upon him to be present at the general meeting, to be held not earlier than a period of one month from the date of such notice and to show cause against expulsion to the general body of members. After hearing the member, if present, or after taking into consideration any written representation which he might have sent, the general body shall proceed to consider the resolution.
(3)When a resolution passed in accordance with sub-rule (1) or (2) is sent to the Registrar or otherwise brought to his notice, the Registrar may consider the resolution and after making such enquiry as to whether full and final opportunity has been given under sub-rule (1) or (2) give his approval and communicate the same to the society and the member concerned with in a period of 6 months. The resolution shall be effective from the date of approval.”
(4) xxxxx (5) xxxxx
(4) The learned counsel for the petitioner has submitted that an expulsion from membership is not effective unless and until the resolution to that effect passed by the society is approved by the Registrar and hence need not be and cannot be appealed against, If it has been approved by the Registrar then the remedy of appeal provided by Section 76(l)(e) read with Section 76(2)(c) would cease to be an effective alternative remedy of appeal in as much as appeal against the decision of the society would he to the Registrar and the Registrar would have already expressed his opinion on expulsion while granting the approval. If a revision were to be preferred against the order of the Registrar under Section 80 then the challenge in revision would be confined to the order of the Registrar granting approval and decision of the Co- operative Society expelling the member would remain untouched. It is submitted that this lacuna renders the remedy of appeal and revision in the matter of expulsion of a member from a Society a farce and so the remedy of filing a writ petition should not be denied to an expelled member feeling aggrieved. In any case it would be a sound exercise of discretion to entertain a writ petition against expulsion from membership of Society, submitted the learned counsel for the petitioner.
(5) There is a fallacy in the argument and though outwardly appealing it is found to be of no substance on a deeper probe into the relevant provisions. .
(6) It is not correct to say that the resolution of expulsion from membership is not effective or has no legal or binding efficacy unless and until approved by the Registrar. The phraseology used in rule 36(3) of the Rules ‘the resolution shall be effective from the date of approval’ – merely appoints a date from which it has to be treated as affective. This provision is not the source from which the resolution of expulsion derives its legal efficacy. It merely appoints a date for commencement of efficacy of the resolution. In other words but for the last sentence of Rule 36(3) the resolution would have been effective from the date of its passing subject to approval by the Registrar, but the provision postpones the commencement of efficacy to the date of approval. Even on the date on which the resolution is passed it is the decision of a co-operative Society expelling a member and the person adversely affected can file an appeal under Section 76(l)(e), though the decision might not have been approved by the Registrar till the date of filing of the appeal. Absence of approval by the Registrar does not render the decision of expulsion by the Society non-appealable or anything less than a resolution of the Society.
(7) It is open to the member expelled to wait for approval of the resolution by the Registrar without filing an appeal. The Registrar may approve or may not approve the expulsion. If the expulsion is approved, the decision of the society would merge into the order of approval passed by the Registrar and in a revision filed against the order of Registrar under Section 80 of the Act the Lt.Governor may examine the legality and propriety of the decision or the order of the Registrar as also of the Society. Of necessity while examining the legality or property of the decision of the Registrar the Lt.Governor shall have jurisdiction to go into the question of legality or propriety of the decision of the Society as well; for if the decision of the Society was not liable to be sustained where was the question of Registrar granting its approval. The process of testing legality or propriety of the order of the approval made by the Registrar would necessarily involve testing the legality or propriety of the decision of the Society considered and approved by the Registrar.
(8) It was submitted at the bar that the scope of Sub-Rule (3) of rule of the Rules 36 is very very limited as the Registrar while approving the resolution of expulsion from membership passed by the society would examine only whether full and final opportunity has been given to the member expelled under Sub-Rule (1) or (2) and if he is so satisfied then he would grant his approval. In other words except for satisfying himself as to the opportunity having been given to the expelled member the Registrar may not while granting approval enter into the merits of expulsion or the material on which it is based. We find ourselves not persuaded to accept the contentions so advanced. Sub Rule ( 3) casts an obligation on the Registrar not only to make an enquiry as to whether full and final opportunity has been given to the member, but he has also to ‘consider’ the resolution.
8.1Black’s Law Dictionary (Sixth Edition) defines “consider” to mean :- Consider. To fix the mind on, with a view to careful examination; to examine; to inspect. To deliberate about and ponder over. To entertain or give heed to.
8.2Chamber’s 20th Century Dictionary (New Edition) defines “consider” to mean “Consider. (vt.) to look at attentively or carefully; to think or deliberate on; to take into account; to attend to……(v.i.) to think seriously or carefully; to deliberate”.
8.3It is clear that the scope of the jurisdiction exercised by the Registrar under Sub-Rule (3) is much wider; he has to go deep into the matter, examine the resolution carefully, deliberate upon it and then to form an opinion whether to approve the same or not.
8.4Thus the resolution may come to be placed before the Registrar in two jurisdictions; one, of appeal; the other, of approval. In appeal, the entire subject matter of controversy stands re-opened before the appellate authority. Apeal is a vested right. Parties have to be heard. In appropriate case additional evidence may be allowed. The function of the Registrar in hearing of appeal would be quasi- judicial. However, the function of approval contemplated by Rule 36(3) is an administrative act of the Registrar. He may or may not choose to hear the parties. No one can claim a right of hearing or participation in the process of approval before the Registrar though he would not be committing an illegality or excess of jurisdiction if he may permit a hearing to or participation by the parties. That is the distinction.
8.5In the very nature of things an appeal if preferred shall have to be heard before granting an approval by the Registrar. In appropriate cases in order to avoid possibility of conflicting orders and inconvenience to the parties, the Registrar may choose to take a decision on the appeal and the approval together. However, if approval has been granted by the Registrar then the filing or hearing of the appeal would be an exercise in futility; then the only remedy left available to the person aggrieved would be to prefer a revision against the order of the Registrar.
(9) For the foregoing reasons it is held that the petitioner has an alternate efficacious remedy available to him. The remedy now in the facts of the case would be of a revision under Section 80 to be filed against the order of the Registrar approving the decision of the Society expelling the petitioner from membership in the facts of the case.
(10) Our attention was invited to an unreported decision in Delhi Niwas Coop.Group Housing Society VS. Registrar Coop.Societies (CWP 101188 decided on 14.1.88) wherein the following view was taken :- “THE expulsion order has to be approved by the Registrar and on the approval the order has to take effect. The order remain to be the order of the Society. Under Section 76(2) the appeal in such a case can only lie before the Lt.Governor and has been filed within the period of limitation inasmuch as the resolution of the Society was approved by the Registrar on 3.9.1987. The appeal was filed within sixty days from that date. In any case the order passed by the Lt.Governor is a just and fair order and there is no ground interfere under Article 226.”
IT may be noted that the above said decision was one, made at the stage of hearing on the question of admission. The learned Judges were not called upon to make an indepth scrutiny of the provisions contained in Section 76 and Rule 36 above said. Moreover, the decision shows that an additional ground for not entertaining the writ petition was that the learned judges were inclined to hold the order of the Lt.Governor ‘a just and fair order’ warranting no interference under Article 226 of the Constitution. We are in our present order assigning reasons for taking the view which we have taken.
(11) For the foregoing reasons, the petition is held to be not maintainable. It is dismissed. However, liberty is allowed to the petitioner to prefer a revision under Section 80 of the Act against the order of the Registrar. We may place on record that both the learned counsel appearing for the Society and for the Registrar Co-op.Society have stated before us that if the petitioner files a revision within a period of one month from today then the respondents would not object to the revision being heard and disposed of on merits and they would not raise the plea of revision being barred by limitation. That is a very fair stand taken and we take it on record.