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TMI Blog2010 (11) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 5th November, 1981 whereby the name of the respondent-1 had been removed from the list of members of the appellant-society were quashed and set aside. 3. The respondent-1, Dr. Parmanand Sharma was enrolled as a member of the appellant society vide membership No. 35 on 11th March 1961. In 1968, he purchased a property bearing No. A-19/A, Kailash Colony, New Delhi in the name of his Hindu Undivided Family consisting of respondent-1, his wife and two minor children in 1968 and a structure was constructed thereon in 1969. According to the appellant-society, this construction is a residence-cum- nursing home, whereas respondent-1 claims it to be only a nursing home, to which question we will refer later. In this chain of events, the membership of the respondent-1 was terminated from the appellant society on the ground that the respondent-1 owned another property, i.e., 19/A, Kailash Colony, in Delhi, since as per Rule 25 (1)(c) of the Delhi Cooperative Societies Rules, 1973 (hereinafter referred to as the Rules ), upon owning another property, the appellant was not entitled to be member of a Cooperative Housing Society. The respondent-1 was also expelled on 14th January ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty was used solely for a nursing home, and since respondent-1 remained in the nursing home for most of the time as a doctor, therefore it was solely for convenience's sake that he used the address to further correspondence. This aspect, it was submitted, would not render the property residential in any way. Further, counsel for respondent-1 contended that the said property was purchased in the name of the HUF, and not in respondent- 1's name, and therefore the latter cannot be expelled from the membership of the appellant-society. He also submitted that the respondent-1 cannot be expelled because of purchase of the said property was facilitated before the Rules came into force in exercise of power granted under the Delhi Cooperative Societies Act, 1972. It was further contended that at the time of acquisition of membership of the said society, the appellant's society was governed by the Bombay Cooperative Societies Act, 1925, which doesn't have any provision disqualifying a member of a cooperative society on acquisition of another property in Delhi. Rule 25 has no retrospective application; therefore it was submitted that expulsion of the respondent-1 is non est i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence not involving moral turpitude and dishonesty and a period of five years has not elapsed from the date of expiry of the sentence: (c) in the case of membership of a housing society: (i) owns a residential house or a plot of land for the construction of a residential house in any of the approved or un-approved colonies or other localities in the National Capital Territory of Delhi, in his own name or in the name of his spouse or any of his dependent children, on lease hold or free-hold basis or on power of attorney or on agreement for sale; Provided that disqualification of membership as laid down in Sub-rule (l)(c)(i) shall not be applicable in case of co-sharers of property whose share is less than 66.72 sq. metres of land; Provided further that the said disqualification shall not be applicable in case of a person who has acquired property on power of attorney or through agreement for sale and on conversion of the property from leasehold to freehold on execution of conveyance deed for it, if such person applies for the membership of the housing society concerned; (Amended on 6.8.97) (ii) he deals in purchase or sale of immovable properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent children, on lease-hold or free-hold basis. The learned Counsel for the respondent-1 contended that since the said rule does not come within the ambit of power given under Section 97(2) of the Act to the Lt. Governor who is empowered to make rules about the conditions to be complied with by persons applying for admission or admitted as members, the same cannot be applied to the person who have already become a member to disqualify him for the act done prior to coming into force of the Rules. Further it was also contended that the said power is limited by Section 98 of the Act which repeals the earlier Act and saves the right, privileges or obligations accrued or incurred under the earlier Act repealed. 9. The first consideration in this regard is whether Section 97 of the Act permits the Lt. Governor to make the above disputed provision of Rule 25. Section 97 of the Act reads as follows: 97 (1) The Lieutenant Governor may, for any co-operative society or class of co-operative societies, make rules to carry out the purposes of this Act. (2) In particular, and without prejudice to the generally of the foregoing power, such rules may provide for all or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ors. reported at AIR 1966 SC 1471: 18. ...Section 15(1) confers wide powers on the appropriate Government to make rules to carry out the purposes of the Act; and Section 15(2) specifies some of the matters enumerated by Clauses (a) to (e), in respect of which rules may be framed. It is well-settled that the enumeration of the particular matters by Sub-section (2) will not control or limit the width of the power conferred on the appropriate Government by Sub-section (1) of Section 15; and so, if it appears that the item added by the appropriate Government has relation to conditions of employment, its addition cannot be challenged as being invalid in law. Whether or not such addition should be made, is a matter for the appropriate Government to decide in its discretion. The reasonableness of such addition cannot be questioned, because the power to decide which additions should be made has been left by the Legislature to the appropriate Government. 11. In view of the above position, it may be deduced that the power to frame rules given under Section 97(1) of the Act is not controlled by the list mentioned in Sub-section (2) and the Lt. Governor can make rules fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isqualification applied to every convicted felon irrespective of whether he was so convicted prior to or after the Act came into operation. 13. A reference may also be made to Re: Solicitors Clerk reported at (1957) 3 AH. E.R. 617, wherein the bone of contention revolved around that Solicitor's Act of 1956 which provided that no solicitor should employ any person who is convicted of larceny without the permission of the Law Society. The clerk in that case was convicted of larceny in 1953, while the ban was imposed in 1956. It was urged that the provisions of the 1956 Act cannot be applied to him because he was convicted before that Act came into operation. To do otherwise, it was argued, would be to make its operation retrospective. In rejecting this contention, Lord Goddard, C.J. observed: In my opinion, this Act is not in truth retrospective. It enables an order to be made disqualifying a person from acting as a solicitor's clerk in the future and what happened in the past as the cause or reason for the making of the order; but the order has no retrospective effect. It would be retrospective if the Act provided that anything done before the Act came int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond question of applicability of bye-laws, the same came into force on 3.10.1962. The eligibility conditions for enrollment as a member of the society were provided in chapter III of the said bye-laws. Bye-law No. 8 (vii) which provides for cessation of membership is reproduced is reproduced herein under: 8. A person ceases to be a member: (vii) On undertaking the business of purchase and sale of houses or land for construction of houses either directly or indirectly or on purchasing a house or a plot of land for construction of houses either in his own name or in name of any of his dependants through any other source and the member shall, within one month of his undertaking the said business or purchase of a house or a plot of land shall inform the society about this. 17. Perusal to above bye-law makes it clear that on purchasing a house or a plot of land for construction of a house, either in his own name or in name of any of his dependants, disqualifies a member of the society to continue as one. Bye laws of the society regulate the management of the society and govern the relationship between society and members inter se. They are of the nature of Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of which is also not in doubt. The violation of said bye law 5(i)(e) was also communicated to the respondent-1 by show cause notice dated 24.1.1978 and also raised as a ground in the writ petition before the High Court and in the SLP filed before this Court. The said bye law 5(i)(e) is produced herein under : 5(i) Any person shall be eligible to be a member of the society, provided; (e) he or his wife (she or her husband incase of a woman) or any of his/her dependents does not own a dwelling house or a plot for building a house in Delhi; 21. The question for our consideration is what is the meaning of the expression eligible to be a member used in the 1962 bye law No. 5(i)(e). The verb be has two meanings, namely, (a) to exist, and (b) to become. The former refers to the existence of state of affairs in present while the latter refers to the coming into existence of a new state of affairs. It is argued for the respondent-1 that the 1962 bye-law No. 5(i)(e) refers only to the eligibility of a person to become a member. On the contrary, the respondents have urged that even a person who is already a member ceases to be eligible to continue as a member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecific attention was drawn to clause No. 5 (a) of the said lease deed, which reads as follows: 5(a). The lease shall sublease within one year from the date of execution of these present, such time and on such premium and yearly rent as may be fixed by the lessor, one residential plot to each of its members who or whose wife/husband or any of his/her dependent relatives including unmarried children does not own, in full or in part, on freehold or leasehold bases, any residential plot or house in the urban areas of Delhi, New Delhi or Delhi cantonment, and who may be approved by the chief commissioner. The appellant society was, therefore, under an obligation not to allot a residential plot to a person, who was owning a property in the city of Delhi. Therefore, as per terms of allotment of the land to the appellant it was obligatory for the society not to allot plots of land to such persons who own any residential property either in their own name or in the name of their family member. When the Hindu Undivided Family of the respondent consists only of his own family members, namely, his wife, son and the daughter and therefore obviously ownership of the said proper ..... X X X X Extracts X X X X X X X X Extracts X X X X
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