advocatemmmohan
just another law knowledge bank
Cooperative
Section 2(h) of the RTI Act – Kerala Co-operative Societies Act – Not public authority- THALAPPALAM SER.COOP.BANK LTD.& ORS. Vs. STATE OF KERALA & ORS. published in judis.nic.in/supremecourt/filename=40863
Cooperative Societies registered under the Kerala Co-operative Societies Act will not fall within the definition of “public authority” as defined under Section 2(h) of the RTI Act = whether a co- operative society registered under the Kerala Co-operative Societies Act, 1969 (for short “the Societies Act”) will fall … Continue reading
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 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 … Continue reading
Labour Laws – Reinstatement with back wages – Absence without leave – Deemed as resignation as per Bye-Laws and Rules – Reappointment on compassionate ground ordered – After re-appointment, employee again going on leave without permission – Absence again deemed as his resignation – Writ petition by employee seeking his re-instatement in compliance with order of re-appointment – Single Judge of High Court dismissing the petition holding that the employee concealed the fact of his re-appointment – Division Bench of High Court allowing the writ appeal, holding that despite the order of re-appointment by respondent No. 3, he was not employed and directed reinstatement with back wages – In compliance of Division Bench order, employee reinstated – Thereafter, again he failed to report for work – In departmental inquiry for misconduct found guilty – On appeal, held: The decision of High Court was based on erroneous facts – On facts, High Court order not sustainable so far as payment of back wages and other benefits are concerned – Interference with the order regarding reinstatement not called for in view of his having been found guilty in domestic inquiry – The order is modified to the extent that the employee is entitled to full back wages from the date of his joining duty on reinstatement in compliance of order of Division Bench till the date he failed to report for work – Tamil Nadu Co-operative Societies Rules, 1988 – r. 149(10)(1). Respondent No. 1, appointed with the appellant-Society, remained absent without leave from November, 1990. Appellant treated him to have resigned from service as per the Bye-Laws of the Society and r. 149(10)(1) of Tamil Nadu Co-operative Societies Rules, 1988. After a lapse of 5 years, respondent No. 1 raised industrial dispute. During pendency of the dispute, he was re-appointed by respondent No. 3, on compassionate ground on certain conditions inter-alia that the period of his absence from duty till the date of his joining duty after re-appointment, shall be treated as leave without pay. After his re-appointment, respondent No. 1 was asked to join another Society. After joining there, he again failed to report for work for about one year. That Society passed a resolution to send him back to his parent Society. He was once again deemed to have resigned from the services of the Society. After about 3 years of the passing of the resolution, he filed a writ petition seeking his appointment in appellant- Society in pursuance of the order of re-appointment passed by respondent No. 3. He also sought all the salaries and other benefits from November, 1990. The writ petition was dismissed by Single Judge of High Court on account of suppression of material facts. Writ appeal, against the same was allowed by Division Bench of High Court directing to reinstate respondent No. 1 with back wages from the date of his dismissal, till the date of his reinstatement, together with all other attendant benefits. Hence the present appeal. During pendency of the case before Supreme Court, the appellant-Society reinstated the respondent in compliance of the impugned order passed by the Division Bench of High Court. The respondent, after joining, again failed to report for work. He was placed under suspension and domestic inquiry was initiated against him. Inquiry Officer held that charges against him were duly proved. =Disposing the appeal, the Court HELD: 1. The decision of the Division Bench of the High Court impugned in the instant appeal, cannot be sustained at least as far as payment of back wages and other benefits are concerned. The conduct of the respondent No.1 does not justify the relief given to him by virtue of the impugned order. Despite the fact that the Single Judge pointed out that the prayer made in the Writ Petition could not be granted on account of suppression of material facts which ran counter to such prayer, the Division Bench appears to have lost sight of the same. As the facts reveal, the respondent No.1 unilaterally stopped coming to work without submitting any leave application or prior intimation and that too not for a day or two, but for months on end. The decision of the Appellant-Society to re-appoint the respondent No.1 on compassionate grounds leading to the order of respondent No. 3 permitting the Appellant-Society to re-appoint him, was in itself a concession made to the respondent No.1 which he misused subsequently. [Para 17] [331-C-G] 2. Even after he was released from the Vijayapuram Society on 24th February, 1997, the Respondent No.1 remained silent till 30th September, 2000, when he filed the writ petition for a direction to appoint him to a suitable post in the Appellant-Society or the Sankarapuram Taluk Co- operative Housing Society pursuant to the order passed by respondent No. 3. Despite the maximum latitude shown to him by allowing him to rejoin his duties in the Appellant-Society pursuant to the impugned order passed by Division Bench of High Court, the Respondent No.1 again failed to report for work, as a result he was placed under suspension and a domestic enquiry was conducted in which he was found to be guilty of the charges brought against him. [Para 18] [331-H; 332-A-C] 3. The Division Bench of the High Court does not appear to have considered the events which occurred after the respondent No.1 was reinstated in service pursuant to the order passed by respondent No. 3. The fact that thereafter, on account of his failure to report for duties for more than one year, the respondent No.1 was once again deemed to have resigned from the services of the Society u/r. 149(10)(1) of Tamil Nadu Co-operative Societies Rules, 1988 appears to have been overlooked by the High Court. The Division Bench of the High Court does not also appear to have taken into consideration the fact that the respondent No.1 remained silent for about three years, when he filed Writ Petition for a direction for his appointment. [Para 19] [332-D-G] 4. The events, prior to the date when the respondent No. 1 joined the service after the order passed by the respondent No. 3, and thereafter, were not seriously considered by the Division Bench of the High Court which proceeded on the basis that despite the order passed by the respondent No. 3, the Respondent No.1 had not been given appointment, which fact was entirely erroneous. [Para 20] [332-H; 333-A-B] Novartis India Limited vs. State of West Bengal (2009) 3 SCC 124, distinguished. 5. In the circumstances of the case, the judgment and order of the Division Bench of the High Court cannot be sustained. However, having regard to the fact that a domestic inquiry was conducted against the respondent No.1, in which he was found guilty, interference with that part of the order impugned, directing reinstatement is not called for, but the Court is not inclined to maintain the order of the Division Bench of the High Court regarding payment of back wages. [Para 21] [333-D-E] 6. In the circumstances of the case, the Court is inclined to modify the part of the impugned order directing payment of back wages by directing that the Respondent No.1 will be entitled to full wages only for the period between the date when respondent No. 1 joined duty pursuant to impugned judgment and the date when he failed to join duty for which departmental inquiry was initiated, and other connected benefits, if any. As far as payment of full salary for the period under suspension undergone by the respondent No.1 during which period he was being paid subsistence allowance is concerned, the same will depend on the final order to be passed in the disciplinary proceedings already initiated against the respondent No.1. [Para 23] [334-A-C] Case Law Reference: (2009) 3 SCC 124 Distinguished. Para 20 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4357 of 2010. From the Judgment & Order dated 27.06.2007 of the High Court of Judicature at Madras in W.A. No. 3748 of 2004. N. Shoba, Sriram J. Thalapathy and Adhi Venkataraman for the appellant. T. Harish Kumar and Anitha Shenoy for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4357 OF 2010 (@SPECIAL LEAVE PETITION(C) No.18834 OF 2007) Kallakurichi Taluk Co-op. Housing Society Ltd. … Appellant Vs. M. Maria Soosai & Ors. … Respondents J U D G M E N T 2 ALTAMAS KABIR, J. 1. Leave granted. 2. This … Continue reading
the High Court has struck down the provisions of
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2188 OF 2008 A.P. Dairy Development Corporation … Appellant Federation Versus B. Narasimha Reddy & Ors. …Respondents WITH CIVIL APPEAL NOS. 2189-2212 OF 2008 AND CIVIL APPEAL NO. 4588 OF 2008 J U D G M E N T Dr. B.S. CHAUHAN, … Continue reading
advocatemmmohan 