2009 (2) TMI 893 - SC - Indian Laws

Disqualification of Membership under Rule 25 of the Delhi Co-operative Societies Rule 1973 - deemed - without availing the statutory remedies available under the Act and the Rules the respondent No. 2 filed a writ petition - Allotment of plot or in alternative to refund money paid - respondent No. 2 submitted that she has been fighting a battle for getting her legitimate right and after having accepted the prayer for transfer the Society cannot turn around and take a stand that since Anoop Singh was disqualified the order of the High Court is indefensible - HELD THAT - We find that before the High Court there was no appearance on behalf of the present appellant. For the purpose of the present case Sub-rule (2) of Rule 25 is of paramount importance. There is a deemed disqualification. The effect of it has not been examined by the High Court. The word deemed is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious what is uncertain and what is in the ordinary sense impossible. Deems means is of opinion or considers or decides and there is no implication of steps to be taken before the opinion is formed or the decision is taken. Ld Counsel for the appellant is right that normally when a statutory remedy is available the same should be availed. In the instant case that aspect has also not been examined by the High Court. We are therefore of the considered opinion that the writ petition needs to be heard by the High Court afresh to be decided keeping in view the applicable legal provision. Since no counter affidavit had been filed by the present appellant before the High Court we permit it to do so within a period of one month. Till the disposal of the writ petition by the High Court afresh no third party rights in respect of the plot which is stated to have been allotted to respondent No. 2 shall be created by the appellant. The appeal is allowed.

Issues Involved:
1. Legitimacy of the transfer of membership from Anoop Singh to respondent No. 2.
2. Compliance with Rule 25 of the Delhi Co-operative Societies Rules, 1973.
3. Jurisdiction and authority of the Registrar, Cooperative Societies.
4. Appropriateness of the High Court's intervention without exhausting statutory remedies.
5. Validity of the High Court's directions for allotment of the plot.
6. Dismissal of the review petition by the High Court.

Issue-wise Detailed Analysis:

1. Legitimacy of the transfer of membership from Anoop Singh to respondent No. 2:
The appellant-society initially accepted the transfer request of Anoop Singh to his daughter (respondent No. 2) but later required an affidavit which was not provided. Consequently, the society refused the transfer. The High Court held that the transfer had been accepted by the society, thus entitling respondent No. 2 to the plot allotment.

2. Compliance with Rule 25 of the Delhi Co-operative Societies Rules, 1973:
Rule 25 outlines the disqualifications for membership in a co-operative society. The appellant argued that Anoop Singh's request for a refund implied his disqualification, making the transfer to respondent No. 2 invalid. The High Court did not examine the implications of Rule 25(2), which deems a member disqualified under certain conditions, creating a legal fiction that should be fully explored.

3. Jurisdiction and authority of the Registrar, Cooperative Societies:
The High Court directed the Registrar to recommend the allotment of the plot to respondent No. 2, stating that the Registrar had no authority to withhold such a recommendation based on the affidavit issue. This decision was challenged by the appellant, asserting that the Registrar's authority was not properly considered.

4. Appropriateness of the High Court's intervention without exhausting statutory remedies:
The appellant contended that respondent No. 2 did not exhaust the statutory remedies available under the Delhi Co-operative Societies Act and Rules before approaching the High Court. The Supreme Court noted that this aspect was not examined by the High Court, suggesting that statutory remedies should typically be pursued first.

5. Validity of the High Court's directions for allotment of the plot:
The High Court directed the appellant to allot a plot to respondent No. 2 based on the accepted transfer, despite the appellant's claim of procedural non-compliance by Anoop Singh. The Supreme Court found that the High Court did not fully consider the legal provisions and the implications of Rule 25.

6. Dismissal of the review petition by the High Court:
The appellant's review petition was dismissed by the High Court on the grounds that no case for review was made. The Supreme Court noted that the High Court's dismissal did not address the substantive legal issues raised by the appellant.

Conclusion:
The Supreme Court allowed the appeal to the extent of remanding the case back to the High Court for a fresh hearing. The High Court was instructed to consider the legal provisions, particularly Rule 25, and the statutory remedies available. The appellant was permitted to file a counter-affidavit, and the High Court was requested to dispose of the writ petition within four months. No third-party rights concerning the plot were to be created until the High Court's decision.

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