//
you're reading...
legal issues

Delhi Co-operative Societies Rules, 1973 – r. 36(3) – Co-operative Housing Society passing resolution proposing expulsion of its members – The proposal sent for approval to the Registrar, Co-operative Societies – Records submitted by Society before Registrar after seven years – Thereafter proposal rejected by the Registrar- In the first round of litigation, High Court remanding the matter to the Registrar for reconsideration – In the second round of litigation, High Court in a writ petition holding that the proposal would be deemed to be approved as the same was not decided within a period of 6 months as required u/r. 36(3) – On appeal, held: The resolution passed by the Society cannot be given effect to, unless approval is accorded by the Registrar as mandatorily required under the Act and the Rules – High Court has wrongly gone into the question of delay on the part of the Registrar in deciding the approval of the resolution of the Society, leaving aside the core issue – On facts, no interference was warranted by High Court in its equity jurisdiction for issuing the writ of Certiorari – Delhi Co-operative Societies Act, 1972. Interpretation of Statutes – Legal fiction – Interpretation of – Held: Interpretation of the legal fiction must be limited to the purpose indicated by the context and it cannot be given a larger effect – what can be deemed to exist under a legal fiction are only facts and no legal consequences not flowing from the law as it stands – In absence of a statutory provision, the provision cannot be construed as to provide for a fiction – Creation of fiction by judicial interpretation would amount to legislation. Constitution of India, 1950 – Art. 226 – Writ of Certiorari – Scope of – Held: Writ of Certiorari under Article 226 can be issued only when there is failure of justice and there is error apparent on the face of the record or there is error in jurisdiction or authority or there is breach of principle of natural justice – While issuing such writ, order under challenge not to undergo scrutiny of as an appellate court. Judgment – Recording of reasons in – Requirement of – Held: While deciding an issue, the court is bound to give reasons for its conclusion – Recording of reasons is principle of natural justice – It ensures transparency and fairness in decision making – It is one of the fundamentals of such administration of justice-delivery system – Principles of natural justice – Administration of Justice. Precedent – Co-ordinate Bench of High Court, after considering the judgment passed by another co-ordinate Bench of the High Court, taking contrary view – Propriety of – Held: A co-ordinate Bench cannot comment upon discretion exercised or judgment rendered by another co-ordinate Bench of the same court – The rule of precedent is binding on the court – In judicial administration, precedents which enunciate rules of law form foundation of administration of Justice – Judicial Propriety – Administration of Justice. Maxim – `quando aliquid prohibetur, prohibeus et omne per quod devenitur ad illud’ – Applicability of. Words and Phrases: `Approval’ – Meaning of. Expression `An error apparent on the face of the record’ – Meaning of. The appellants were the members of the respondent-Society (A co-operative Group Housing Society). The Society proposed expulsion of some of its members, including the appellants. The proposal was sent to the Registrar of the Co-operative Societies for approval. The Society submitted its records before the Registrar after about 7 years. Thereafter, the Registrar passed its order, rejecting the proposal. The Society filed revision before the Financial Commissioner, which was dismissed. The Society, then filed a writ petition. The High Court remanded the case to the Registrar for reconsideration. The Registrar, after reconsidering the matter, again rejected the proposal. Revision against the order was also dismissed by the Financial Commissioner. The Society filed another writ petition. The High Court allowed the petition, setting aside the orders passed by the Registrar and the Financial Commissioner. The High Court held interalia that since the resolution sent by the Society was not decided within 6 month as required u/r. 36(3) of the Delhi Co- operative Societies Rules, 1973, it would be deemed to have been approved, though there is no such deeming provision under the Rules. Therefore, the instant appeal was filed. =Allowing the appeal, the Court HELD: 1.1. It is evident from Rule 36(3) of Delhi Co-operative Societies Rules, 1973 that the legislature desired that every resolution regarding expulsion of its members, sent to the Registrar by the Society, be considered and decided within a period of 6 months and that the resolution shall be effective from the date of approval. If approval is required, the order which is required to be approved by the statutory authority cannot become effective unless the approval is accorded. Approval means confirming, ratifying, assenting, sanctioning or consenting to some act or thing done by another. The very act of approval means, the act of passing judgment, the use of discretion, and determining as an adjudication therefrom unless limited by the context of the statute. Thus, the resolution passed by the Society cannot be given effect to, unless approval is accorded by the Registrar as mandatorily required by the Delhi Co- operative Societies Act, 1972 and the Rules. [Paras 9, 10 and 13] [633-H; 634-A-C; 635-A-B] Trilochan Mishra etc. v. State of Orissa and Ors. AIR 1971 SC 733; Union of India and Ors. v. M/s. Bhimsen Walaiti Ram AIR 1971 SC 2295; State of Orissa and Ors. v. Harinarayan Jaiswal and Ors. AIR 1972 SC 1816; State of U.P. and Ors. v. Vijay Bahadur Singh Ors. AIR 1982 SC 1234; Laxmikant and Ors. v. Satyawan and Ors. AIR 1996 SC 2052; Vijayadevi Navalkishore Bhartia and Anr. v. Land Acquisition Officer and Anr. (2003) 5 SCC 83 – relied on. 1.2. The Legislature in its wisdom has not enacted any deeming provision providing that in case the resolution is not considered and finally not decided by the Registrar within a period of six months, the resolution shall become effective and operative. It is the exclusive prerogative of the Legislature to create a legal fiction meaning thereby to enact a deeming provision for the purpose of assuming the existence of a fact which does not really exist. Even if a legal fiction is created by the Legislature, the court has to ascertain for what purpose the fiction is created, and it must be limited to the purpose indicated by the context and cannot be given a larger effect. More so, what can be deemed to exist under a legal fiction are merely facts and no legal consequences which do not flow from the law as it stands. It is a settled legal proposition that in absence of any statutory provision, the provision cannot be construed as to provide for a fiction in such an eventuality. More so, creating a fiction by judicial interpretation may amount to legislation, a field exclusively within the domain of the legislature. Extension of the period from 6 months to 1 year, amounts to legislation. [Paras 14 and 17] [635-B-E; 636-C] Ajaib Singh v. Sirhind Coop. Marketing-cum-processing Service Society Ltd. and Ors. (1999) 6 SCC 82; Union of India and Anr. v. Deoki Nandan Aggarwal AIR 1992 SC 96 – relied on. B.B. Chibber v. Anand Lok Co-operative Group Housing Society Ltd. and Ors. 90 (2001) DLT 652 – approved. 1.3 The High Court had found fault with the orders of the Registrar and the Financial Commissioner basically on the grounds of delay and laches without realising that the writ petition was not against the orders passed by the Registrar after inordinate delay of 7 years. That had been the subject matter of the earlier writ petition filed by the Society and the High Court was dealing with subsequent orders which had been passed by those authorities after remand. Therefore, there was no occasion for the High Court to go into those issues leaving the core issue undecided. In fact, the High Court has reviewed its earlier order as it dealt with the issues involved in the earlier writ petition. The High Court failed to appreciate that it was not dealing with a review petition as it had reviewed its earlier judgment indirectly. [Para 22] [637-C-F] 1.4 It is a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of “quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud.” An authority cannot be permitted to evade a law by “shift or contrivance”. [Para 23] [637-F-H] Jagir Singh v. Ranbir Singh and Anr. AIR 1979 SC 381; M.C. Mehta v. Kamal Nath and Ors. AIR 2000 SC 1997 – referred to. 1.5 The High Court has dealt with the case without meeting any of the reasons given by the Registrar and unnecessarily laboured in digging the old fossils that the Registrar failed to decide the case for long 8 years and in such a fact-situation, he would become functus-officio, without appreciating that if the Society was so aggrieved by inaction of the Registrar, it could have approached the High Court to issue a direction to the Registrar to decide the case within a stipulated period. The statutory authorities must be allowed to exercise their powers reasonably and in good faith. In the instant case, the Resolution dated 27.4.1987 was forwarded by the Society to the Registrar for approval after an inordinate delay on 20.2.1988. The High Court itself has taken note that “several opportunities were given to the Society which finally submitted the records on 19.9.1995.” Thus, delay was totally attributable to the Society itself. [Paras 26] [639-B-F] 1.6 The High Court has not recorded any finding of fact as to when the demands had been made from the members and as to whether there was any progress in the construction work of the Society. Not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is that the forum discloses its reasons by itself. Giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice-delivery system, to make it known that there had been proper and due application of mind to the issue before the court, and also as an essential requisite of the principles of natural justice. “The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind.” The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable, particularly, when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. [Paras 27 and 28] [639-G-H; 640-A-F] State of Orissa v. Dhaniram Luhar AIR 2004 SC 1794; State of Rajasthan v. Sohan Lal and Ors. (2004) 5 SCC 573; Vishnu Dev Sharma v. State of Uttar Pradesh and Ors. (2008) 3 SCC 172; Steel Authority of India Ltd. v. Sales Tax Officer, Rourkela I Circle and Ors. (2008) 9 SCC 407; State of Uttaranchal and Anr. v. Sunil Kumar Singh Negi AIR 2008 SC 2026; U.P.S.R.T.C. v. Jagdish Prasad Gupta AIR 2009 SC 2328; Ram Phal v. State of Haryana and Ors. (2009) 3 SCC 258; State of Himachal Pradesh v. Sada Ram and Anr. (2009) 4 SCC 422; The Secretary and Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity and Ors. AIR 2010 SC 1285 – relied on. 1.7 The High Court ought to have considered that it was a petition for a writ of certiorari and it was not dealing with an appeal. The writ of certiorari under Article 226 of the Constitution can be issued only when there is a failure of justice and it cannot be issued merely because it may be legally permissible to do so. There must be an error apparent on the face of record as the High Court acts merely in a supervisory capacity. An error apparent on the face of the record means an error which strikes one on mere looking and does not need long drawn out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. Such errors may include the giving of reasons that are bad in law or inconsistent, unintelligible or inadequate. It may also include the application of a wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, and wrongful admission or exclusion of evidence, as well as arriving at a conclusion without any supporting evidence. Such a writ can be issued when there is an error in jurisdiction or the authority whose order is to be reviewed has acted without jurisdiction or in excess of its jurisdiction or has failed to act. While issuing the Writ of Certiorari, the order under challenge should not undergo scrutiny of an appellate court. It is obligatory on the part of the petitioner to show that a jurisdictional error has been committed by the Statutory Authorities. There must be the breach of principles of natural justice for resorting to such a course. Thus the facts of the instant case did not warrant any interference by the High Court in its equity jurisdiction for raising the writ of certiorari. [Para 29] [641-B-H; 642-A] Harbans Lal v. Jagmohan Saran AIR 1986 SC 302; Municipal Council, Sujanpur v. Surinder Kumar (2006) 5 SCC 173; Sarabjit Rick Singh v. Union of India (2008) 2 SCC 417; Assistant Commissioner, Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Limited (2008) 14 SCC 171 – relied on. 1.8. As the Society has been taken over by the Administrator and a large number of flats remained un-allotted, In order to meet the ends of justice it is required that the appellants be adjusted against the said un-allotted flats. However, the Society shall put a demand, if any, and the appellants are directed to make the payment with interest in accordance with law. [Para 31] [642-C-D] 2. A co-ordinate bench cannot comment upon the discretion exercised or judgment rendered by another co-ordinate bench of the same court. The rule of precedent is binding for the reason that there is a desire to secure uniformity and certainty in law. Thus, in judicial administration, precedents which enunciate rules of law form the foundation of the administration of justice. Therefore, it has always been insisted that the decision of a co-ordinate bench must be followed. In the instant case, it was neither desirable nor permissible by the Co-ordinate Bench of the High Court to disapprove the earlier judgment and take a view contrary to it. The latter bench has taken a divergent view from an earlier co-ordinate bench, particularly, taking note of the earlier decision holding otherwise, without explaining why it could not follow the said precedent even while extensively quoting the same. Judicial propriety and discipline are not served by such conduct on the part of the Division Bench. Thus, it was not permissible for the High Court to take the course which it has adopted and such a course cannot be approved. [Paras 18, 20 and 21] [636-D-E; 637-A-C] Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel and Ors. AIR 1968 SC 372; Sub-Committee of Judicial Accountability v. Union of India and Ors. (1992) 4 SCC 97; State of Tripura v. Tripura Bar Association and Ors. (1998) 5 SCC 637; Rajasthan Public Service Commission and Anr. v. Harish Kumar Purohit and Ors. (2003) 5 SCC 480 – relied on. Case Law Reference: (2003) 5 SCC 83 Relied on. Para 10 AIR 1971 SC 733 Relied on. Para 10 AIR 1971 SC 2295 Relied on. Para 10 AIR 1972 SC 1816 Relied on. Para 10 AIR 1982 SC 1234 Relied on. Para 10 AIR 1996 SC 2052 Relied on. Para 10 (1999) 6 SCC 82 Relied on. Para 14 AIR 1992 SC 96 Relied on. Para 15 90 (2001) DLT 652 Approved. Para 16 AIR 1968 SC 372 Relied on. Para 18 (1992) 4 SCC 97 Relied on. Para 18 (1998) 5 SCC 637 Relied on. Para 18 (2003) 5 SCC 480 Relied on. Para 19 AIR 1979 SC 381 Referred to. Para 23 AIR 2000 SC 1997 Referred to. Para 23 AIR 2004 SC 1794 Relied on. Para 28 (2004) 5 SCC 573 Relied on. Para 28 (2008) 3 SCC 172 Relied on. Para 28 (2008) 9 SCC 407 Relied on. Para 28 AIR 2008 SC 2026 Relied on. Para 28 AIR 2009 SC 2328 Relied on. Para 28 (2009) 3 SCC 258 Relied on. Para 28 (2009) 4 SCC 422 Relied on. Para 28 AIR 2010 SC 1285 Relied on. Para 28 AIR 1986 SC 302 Relied on. Para 29 (2006) 5 SCC 173 Relied on. Para 29 (2008) 2 SCC 417 Relied on. Para 29 (2008) 14 SCC 171 Relied on. Para 29 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9439 of 2003. From the Judgment & Order dated 4.9.2002 of the High Court of Delhi at New Delhi in C.W.P. No. 2 of 1998. D.N. Goburdhan, Prabal Bagchi for the Appellant. M.C. Dhingra, Pramod Dayal for the Respondent.

REPORTABLE
Neo-Baroque style CWS offices and warehouse, H...

Image via Wikipedia



 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 9439 OF 2003

Sant Lal Gupta & Ors. ...Appellants

 Versus

Modern Co-operative Group Housing

Society Ltd. and Ors. ...Respondents

 J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been filed against the judgment and order dated 

4.9.2002 passed by the Delhi High Court in Civil Writ Petition No. 

2/98 by which the High Court has set aside the judgment and order of 

the Financial Commissioner dated 3.11.1997 passed in Case 

No.234/97-CA, and also the judgment and order of the Registrar of 

the Co-operative Societies dated 26.8.1997. 

2. Facts and circumstances giving rise to this appeal are that the 

appellants had been the members of the Modern Co-op. Group 

Housing Society Ltd. (hereinafter called the `Society') and claimed to 

have paid all their subscriptions of membership and other dues on the 

demands made by the Society. The Society had proposed the 

expulsion of 27 members including the appellants, by its Resolution 

dated 27.4.1987 and the said proposal was sent to the Registrar of the 

Co-operative Societies (hereinafter called the Registrar) as required 

under the provisions of the Delhi Co-operative Societies Act, 1972 

(hereinafter called as `Act 1972'), for approval on 20.2.1988 and 

meanwhile it enrolled new members, whose approval was also sought. 

In spite of all efforts made by the Registrar, the Society did not submit 

the record before him prior to 19.9.1995. The Registrar vide order 

dated 2.2.1996 issued notice to the Society for consideration of the 

said resolution and vide order dated 4.6.1996 rejected the approval. 

3. Being aggrieved, the Society approached the Financial 

Commissioner by filing a revision under Section 80 of the Act 1972 

 2

which was also dismissed vide judgment and order dated 30.7.1996. 

Being aggrieved, the Society filed Writ Petition No.3325/1996 before 

the Delhi High Court and after hearing the same, the matter was 

remanded to the Registrar for reconsideration. In pursuance of the 

order of the Delhi High Court, the Registrar considered the matter 

afresh and passed an order dated 26.8.1997 rejecting the approval of 

the expulsion of the appellants and other members. Being aggrieved, 

the Society preferred a revision before the Financial Commissioner 

which was also dismissed vide order dated 3.11.1997. 

4. The Society challenged the aforesaid orders of the Financial 

Commissioner as well as of the Registrar by filing Writ Petition 

before the Delhi High Court which has been allowed. Hence, this 

appeal. 

5. Shri D.N. Goburdhan, learned counsel appearing for the 

appellants has submitted that the High Court has mis-directed itself 

and did not decide the core issue involved in the case. The High Court 

has held that in case the resolution sent by the Society is not 

considered and decided finally by the Registrar within a period of 6 

months as required under Rule 36(3) of the Rules 1973, it will be 

 3

deemed to have been approved, though, there is no such deeming 

provision under the Act 1972. The High Court further committed an 

error extending the period of 6 months to 1 year re-legislating the 

statutory provision. More so, there is no reference to the findings 

recorded by the Financial Commissioner and the Registrar in their 

impugned orders and no reasons have been recorded to set aside the 

same. Thus, appeal deserves to be allowed. 

6. On the contrary, Shri M.C. Dhingra, learned counsel appearing 

for the Society, has vehemently opposed the appeal contending that 

the appellants had been defaulters and in spite of several demands 

made by the Society they did not pay the amount. Their expulsion was 

strictly in consonance with the Delhi Co-operative Societies Rules, 

1973 (hereinafter called the Rules). No fault can be found with the 

judgment and order of the High Court. The appeal lacks merit and is 

liable to the dismissed. 

7. We have considered the rival submissions made by learned 

counsel for the parties and perused the record. 

8. Rule 36(3) of the Rules reads as under:

 "36. Procedure for expulsion of members- 

 4

 (1) xx xx xx xx

 (2) xx xx xx xx

 (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 within a period of 6 

 months. The resolution shall be effective from the 

 date of approval." (Emphasis added).

9. It is evident from the aforesaid provision that the legislature 

desired that every such resolution sent to the Registrar by the Society 

be considered and decided within a period of 6 months and that the 

resolution shall be effective from the date of approval. If approval is 

required, the order which is required to be approved by the statutory 

authority cannot become effective unless the approval is accorded. 

10. Approval means confirming, ratifying, assenting, sanctioning or 

consenting to some act or thing done by another. The very act of 

approval means, the act of passing judgment, the use of discretion, 

and determining as an adjudication therefrom unless limited by the 

context of the Statute. (Vide: Vijayadevi Navalkishore Bhartia & 

Anr. v. Land Acquisition Officer & Anr., (2003) 5 SCC 83). 

 5

11. There can be no quarrel with the settled legal proposition that if 

a statute provides for the approval of the higher Authority, the order 

cannot be given effect to unless it is approved and the same remains 

inconsequential and unenforceable. (Vide: Trilochan Mishra etc. v. 

State of Orissa & Ors., AIR 1971 SC 733; Union of India & Ors. v. 

M/s Bhimsen Walaiti Ram, AIR 1971 SC 2295; State of Orissa & 

Ors. v. Harinarayan Jaiswal & Ors., AIR 1972 SC 1816; State of 

U.P. & Ors. v. Vijay Bahadur Singh & Ors., AIR 1982 SC 1234; 

and Laxmikant & Ors. v. Satyawan & Ors., AIR 1996 SC 2052). 

12. While dealing with the approval of an award under the Land 

Acquisition Act, this Court in Vijayadevi Navalkishore Bhartia 

(supra) held: 

 "In the context of an administrative act, the 

 word `approval' does not mean anything more 

 than either confirming, ratifying, assenting, 

 sanctioning or consenting. This is only an 

 administrative power which limits the jurisdiction 

 of the authority to apply its mind to see whether 

 the proposed award is acceptable to the 

 Government or not." 

13. Therefore, it is evident from the aforesaid settled legal 

proposition that the resolution passed by the Society cannot be given 

 6

effect to unless approval is accorded by the Registrar as mandatorily 

required by the Act 1972 and the Rules. 

14. The Legislature in its wisdom has not enacted any deeming 

provision providing that in case the resolution is not considered and 

finally decided by the Registrar within a period of six months, the 

resolution shall become effective and operative. It is the exclusive 

prerogative of the Legislature to create a legal fiction meaning thereby 

to enact a deeming provision for the purpose of assuming the 

existence of a fact which does not really exist. Even if a legal fiction 

is created by the Legislature, the court has to ascertain for what 

purpose the fiction is created, and it must be limited to the purpose 

indicated by the context and cannot be given a larger effect. More so, 

what can be deemed to exist under a legal fiction are merely facts and 

no legal consequences which do not flow from the law as it stands. It 

is a settled legal proposition that in absence of any statutory provision, 

the provision cannot be construed as to provide for a fiction in such an 

eventuality. More so, creating a fiction by judicial interpretation may 

amount to legislation, a field exclusively within the domain of the 

 7

legislature. (Vide: Ajaib Singh v. Sirhind Coop. Marketing-cum-

processing Service Society Ltd. & Ors., (1999) 6 SCC 82). 

15. In Union of India & Anr. v. Deoki Nandan Aggarwal, AIR 

1992 SC 96, this Court observed as under:

 "It is not the duty of the Court either to enlarge 

 the scope of the legislation or the intention of the 

 legislature when the language of the provision is 

 plain and unambiguous. The Court cannot rewrite, 

 recast or reframe the legislation for the very good 

 reason that it has no power to legislate. The power 

 to legislate has not been conferred on the Court."

This Court explained the distinction between the `deeming provisions' 

and `presumption' and held that the distinction is well discernible. 

16. Be that as it may, the High Court has referred to its Division 

Bench judgment in B.B. Chibber v. Anand Lok Co-operative 

Group Housing Society Ltd. & Ors., 90 (2001) DLT 652, wherein 

the same provision has been considered and it had categorically been 

held that deeming approval was not legally permissible. 

17. In view of the above, it was neither desirable nor permissible by 

the Co-ordinate Bench to disapprove the earlier judgment and take 

 8

view contrary to it. More so, extension of the period from 6 months to 

1 year amounts to legislation. 

18. A coordinate bench cannot comment upon the discretion 

exercised or judgment rendered by another coordinate bench of the 

same court. The rule of precedent is binding for the reason that there 

is a desire to secure uniformity and certainty in law. Thus, in judicial 

administration precedents which enunciate rules of law form the 

foundation of the administration of justice under our system. 

Therefore, it has always been insisted that the decision of a coordinate 

bench must be followed. (Vide: Tribhovandas Purshottamdas 

Thakkar v. Ratilal Motilal Patel & Ors., AIR 1968 SC 372; Sub-

Committee of Judicial Accountability v. Union of India & Ors., 

(1992) 4 SCC 97; and State of Tripura v. Tripura Bar Association 

& Ors., (1998) 5 SCC 637).

19. In Rajasthan Public Service Commission & Anr. v. Harish 

Kumar Purohit & Ors., (2003) 5 SCC 480, this Court held that a 

bench must follow the decision of a coordinate bench and take the 

same view as has been taken earlier. The earlier decision of the 

coordinate bench is binding upon any latter coordinate bench deciding 

 9

the same or similar issues. If the latter bench wants to take a different 

view than that taken by the earlier bench, the proper course is for it to 

refer the matter to a larger bench. 

20. In the instant case, the position before us is worse as the latter 

bench has taken a divergent view from an earlier coordinate bench, 

particularly taking note of the earlier decision holding otherwise, 

without explaining why it could not follow the said precedent even 

while extensively quoting the same. Judicial propriety and discipline 

are not served by such conduct on the part of the division bench. 

21. Thus, in view of the above, it was not permissible for the High 

Court to take the course which it has adopted and such a course 

cannot be approved. 

22. The High Court had found fault with the orders of the Registrar 

and the Financial Commissioner basically on the grounds of delay and 

laches without realising that the writ petition was not against the 

orders passed by the Registrar after inordinate delay of 7 years. That 

had been the subject matter of the earlier writ petition No. 3325/1996 

filed by the Society and the High Court was dealing with subsequent 

 10

orders which had been passed by those authorities after remand. 

Therefore, there was no occasion for the High Court to go into those 

issues and leaving the core issue undecided. In fact the High Court 

has made an attempt to review its earlier order as it dealt with the 

issues involved in the earlier writ petition No.3325/1996. The High 

Court failed to appreciate that it was not dealing with a review petition 

as it had reviewed its earlier judgment indirectly. 

23. It is a settled proposition of law that what cannot be done directly, 

 is not permissible to be done obliquely, meaning thereby, whatever 

 is prohibited by law to be done, cannot legally be effected by an 

 indirect and circuitous contrivance on the principle of "quando 

 aliquid prohibetur, prohibetur et omne per quod devenitur ad 

 illud." An authority cannot be permitted to evade a law by "shift or 

 contrivance". (See: Jagir Singh v. Ranbir Singh & Anr., AIR 

 1979 SC 381; and M.C. Mehta v. Kamal Nath & Ors., AIR 2000 

 SC 1997). 

24. The Registrar after remand considered the matter and vide order 

dated 26.8.1997 disposed of the same dealing with the question of the 

expulsion of the appellants and others. The case was decided after 

 11

giving full opportunity of hearing to all the parties concerned. The 

contention of the Society has been that in spite of sufficient 

opportunities the proposed expelled members did not pay the dues, 

and therefore, the Society was justified in passing the resolution for 

their expulsion. The appellants had contended that no valid demand 

had ever been made by the Society and affairs of the Society were 

totally mismanaged by one Shri C.D. Garg, who had no competence 

to deal with the working of the Society. After appreciating the 

evidence on record the Registrar recorded the following findings:

(i) Affairs of the Society were mis-managed by Shri C.D. 

 Garg who was father of the Secretary of the Society and 

 had no authority to function on behalf of the Society;

(ii) There was no development in the Society in spite of large 

 turnover of members; 

(iii) New members had been enrolled before grant of any 

 approval of expulsion by the Registrar;

(iv) No construction had been started and there was no 

 progress in the work and thus no demand could have 

 been made from the members of the Society;

(v) Affairs of the Society required to be enquired into; and 

(vi) According approval of expulsion to the members would 

 amount to encouraging the mal-practices in the Society. 

 12

25. While considering the revision filed by the Society under 

Section 80 of the Act 1972, the Financial Commissioner in his 

judgment and order dated 26.8.1997 concurred with the reasoning 

given by the Registrar and the revisional authority, and had given 

cogent reasons for such agreement. 

26. The High Court has dealt with the case without meeting any of 

the reasons given by the Registrar and unnecessarily laboured in 

digging the old fossils that the Registrar failed to decide the case for 

long 8 years and in such a fact-situation he would become functus-

officio, without appreciating that if the Society was so aggrieved by 

inaction of the Registrar, it could have approached the High Court to 

issue a direction to the Registrar to decide the case within a stipulated 

period. It is not to be forgotten that there could be many reasons and 

circumstances to account for the resolution not having been 

considered within the stipulated time. In such cases delay may be for 

reasons on the part of the applicant himself. The statutory authorities 

must be allowed to exercise their powers reasonably and in good faith. 

 In the instant case, the Resolution dated 27.4.1987 was 

forwarded by the Society to the Registrar for approval after an 

 13

inordinate delay on 20.2.1988. The High Court in paragraph 13 of the 

impugned judgment itself has taken note that "several opportunities 

were given to the Society which finally submitted the records on 

19.9.1995." Thus, delay was totally attributable to the Society itself. 

27. So far as the issue of the expulsion of the members of the 

Society is concerned, the High Court has not recorded any finding of 

fact as to when the demands had been made from the members and as 

to whether there was any progress in the construction work of the 

Society. We have been taken through the entire judgment of the High 

Court. We cannot find any single iota which may be termed as a 

reason for the judgment and we are at a complete loss and could not 

find out as what the High Court has decided. 

28. It is a settled legal proposition that not only administrative but 

also judicial order must be supported by reasons, recorded in it. Thus, 

while deciding an issue, the Court is bound to give reasons for its 

conclusion. It is the duty and obligation on the part of the Court to 

record reasons while disposing of the case. The hallmark of order and 

exercise of judicial power by a judicial forum is for the forum to 

disclose its reasons by itself and giving of reasons has always been 

 14

insisted upon as one of the fundamentals of sound administration of 

the justice - delivery system, to make it known that there had been 

proper and due application of mind to the issue before the Court and 

also as an essential requisite of the principles of natural justice. "The 

giving of reasons for a decision is an essential attribute of judicial 

and judicious disposal of a matter before Courts, and which is the 

only indication to know about the manner and quality of exercise 

undertaken, as also the fact that the Court concerned had really 

applied its mind." The reason is the heartbeat of every conclusion. It 

introduces clarity in an order and without the same, the order becomes 

lifeless. Reasons substitute subjectivity with objectivity. The absence 

of reasons renders an order indefensible/unsustainable particularly 

when the order is subject to further challenge before a higher forum. 

Recording of reasons is principle of natural justice and every judicial 

order must be supported by reasons recorded in writing. It ensures 

transparency and fairness in decision making. The person who is 

adversely affected must know why his application has been rejected. 

[Vide: State of Orissa v. Dhaniram Luhar AIR 2004 SC 1794; 

State of Rajasthan v. Sohan Lal & Ors. (2004) 5 SCC 573; Vishnu 

Dev Sharma v. State of Uttar Pradesh & Ors. (2008) 3 SCC 172; 

 15

Steel Authority of India Ltd. v. Sales Tax Officer, Rourkela I 

Circle & Ors. (2008) 9 SCC 407; State of Uttaranchal & Anr. v. 

Sunil Kumar Singh Negi AIR 2008 SC 2026; U.P.S.R.T.C. v. 

Jagdish Prasad Gupta AIR 2009 SC 2328; Ram Phal v. State of 

Haryana & Ors. (2009) 3 SCC 258; State of Himachal Pradesh v. 

Sada Ram & Anr. (2009) 4 SCC 422; and The Secretary & 

Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik 

Samity & Ors., AIR 2010 SC 1285). 

29. The High court ought to have considered that it was a writ of 

certiorari and it was not dealing with an appeal. The writ of certiorari 

under Article 226 of the Constitution can be issued only when there is 

a failure of justice and it cannot be issued merely because it may be 

legally permissible to do so. There must be an error apparent on the 

face of record as the High Court acts merely in a supervisory capacity. 

An error apparent on the face of the record means an error which 

strikes one on mere looking and does not need long drawn out process 

of reasoning on points where there may conceivably be two opinions. 

Such error should not require any extraneous matter to show its 

incorrectness. Such errors may include the giving of reasons that are 

bad in law or inconsistent, unintelligible or inadequate. It may also 

 16

include the application of a wrong legal test to the facts found, taking 

irrelevant considerations into account and failing to take relevant 

considerations into account, and wrongful admission or exclusion of 

evidence, as well as arriving at a conclusion without any supporting 

evidence. Such a writ can be issued when there is an error in 

jurisdiction or authority whose order is to be reviewed has acted 

without jurisdiction or in excess of its jurisdiction or has failed to act. 

While issuing the Writ of Certiorari, the order under challenge should 

not undergo scrutiny of an appellate court. It is obligatory on the part 

of the petitioner to show that a jurisdictional error has been committed 

by the Statutory Authorities. There must be the breach of principles of 

natural justice for resorting to such a course. (Vide: Harbans Lal v. 

Jagmohan Saran, AIR 1986 SC 302; Municipal Council, Sujanpur 

v. Surinder Kumar, (2006) 5 SCC 173; Sarabjit Rick Singh v. 

Union of India, (2008) 2 SCC 417; and Assistant Commissioner, 

Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange 

Limited, (2008) 14 SCC 171)

 In view of the above, we are of the considered opinion that facts 

of the case did not warrant any interference by the High Court in its 

equity jurisdiction for raising the writ of certiorari. 

 17

30. In view of the facts and circumstances of the case and the 

manner in which the impugned judgment has been passed, appeal 

deserves to be allowed. 

31. Be that as it may, we have been informed by learned counsel 

for the parties that the Society has been taken over by the 

Administrator and a large number of flats remained un-allotted. The 

appellants have filed the information sought by them under the Right 

to Information Act, 2005 on 23.4.2008 which makes it clear that 15 

flats bearing Nos. 14, 23, 217, 324, 325, 327, 418, 421, 426, 513, 516, 

619, 623 and 726 category-`B' and 737 category-`A' remained un-

allotted. In order to meet the ends of justice it is required that 

appellants be adjusted against the said un-allotted flats. However, the 

Society shall put a demand, if any, and the appellants are directed to 

make the payment with interest in accordance with law. 

32. In view of the above, appeal is allowed. Judgment and order of 

the High Court dated 4.9.2002 in Civil Writ Petition No. 2/98 is 

hereby set aside and the judgment and order of the statutory 

 18

authorities dated 26.8.1997 and 3.11.1997 are restored. There shall be 

no order as to costs. 

 ...........................J.

 (P. SATHASIVAM)

 .............................J.

 (Dr. B.S. CHAUHAN)

New Delhi,

October 18, 2010

 19 20

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,891,076 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,906 other followers
Follow advocatemmmohan on WordPress.com
%d bloggers like this: