We, the members of Din Cooperative Group Housing Society Ltd. Dwarka, New Delhi, have been adversely affected by the Hon’ble Court’s order dated 24.03.2007 staying the election of the Managing Committee of the Society. It has brought the democratic system of the Society to a stand still. It is interesting to note that the Secretary of the Society, Mr YS Mathur had prayed to the court to restrain the Society from holding elections and that elections to the Managing Committee be held in abeyance, and, the President, Mr K Subramaniam has stated in writing to the court that the Society has no objections to such a proposal. Needless to say that none of them have considered it prudent to obtain the assent of the General Body before pressing on with the case for getting the elections stayed. Both of them have conveniently concealed from the court the simple fact that they had already completed their term of three years in office way back on 31 May 2005.
When confronted with the situation they have landed the Society in, during the Special General Body Meeting held on 07 Oct 2007, Mr K Subramaniam resorted to the subterfuge that it was the sixteen new members who had got the stay order. He unabashedly assumed that the members would not have read the court order where-in the court had based its judgement on the Society and the Registrar of Cooperative Societies not having any objections to holding the elections in abeyance. He tried to hide from the members the fact that he had himself submitted, in writing, to the court that the Society does not have any such objections to elections being held in abeyance. By so doing, Mr K Subramaniam has tried to perpetuate his position as the President as well as damaged the democratic norms in the Society.
The Managing Committee led by Mr K Subramaniam was requested during the Special General Body Meeting held on 07 Oct 2007 to restore the democratic system in the Society, get the elections done and step down honourably and gracefully. Since he chose to ignore the request, the members of the Society are left with no alternative than to approach the High Court, Delhi to get the stay vacated in order to facilitate holding of elections. Members of the Society who have contributed Rs 1000/- each to meet the legal costs are as under:-
(a) Shri Ashok Kumar.
(b) Shri NN Srivastava.
(c) Shri Ramoday Singh.
(d) Shri AK Malpani.
(e) Dr AK Upadhyay.
(f) Shri Keshav Ranjan.
(g) Shri Kishan Lal Sharma.
(h) Col Jagdish Madan, Retd.
(i) Col RC Kapoor, Retd.
(j) Shri HS Monga.
(k) Shri Ranbir Singh.
(l) Shri AS Gulia.
(m) Shri LC Tomar.
(n) Shri VS Nagar.
(o) Shri Suresh Srivastava.
(p) Shri Balvir Singh.
(q) Mrs Shakuntala.
(r) Mrs Swapna Ghosh.
(s) Mrs Shukla.
(t) Mrs Jayni A Shekhar.
(u) Ms Urmil Malhotra.
(v) Mr Vineet Anand.
As regards the sixteen new members, the Registrar had ruled vide his letter No.F.47(852)GH/SW/Coop/3219, dated 25.10.06 that the 16 members mentioned therein “who have been enrolled arbitrarily after the draw of lots without the approval of the worthy R.C.S. are not eligible to contest the coming election of the Society till the finalisation of their cases”; and Shri Madan Sharma, ex-Secretary of the Society “is also not eligible to contest/participate in the election process on account of grave financial irregularities……made during his period as Secretary of the Society till the finalisation of the investigations….”.
The registrar also mentioned Section 77 (1) of the Delhi Cooperative Societies Act 2003 (hereinafter referred to as “the Act”) which stipulates that “Allotment of plots of land, flats, houses or other dwelling units shall be made …. to the members strictly on the basis of draw of lots only in respect of such members, whose enrolment as a member of a cooperative housing society is found proper in accordance with the provisions of this Act, rules framed there under and the bye-laws of the cooperative housing society by the Registrar…..”
i) The Registrar’s order dated 25.10.2006 is actually only a communication in the form of a addressed to the President of the Din C.G.H.S.Ltd., ii) The aforesaid communication from the Registrar is not an order – judicial, quasi-judicial or administrative – but only an information to the concerned members based on the following provision of the Delhi Cooperative Societies Act, 2003 (hereinafter referred to as “the Act”), reproduced below for convenience of reference:
Section 77 (1) “Allotment of plots of land, flats, houses or other dwelling units shall be made …. to the members strictly on the basis of draw of lots only in respect of such members, whose enrolment as a member of a cooperative housing society is found proper in accordance with the provisions of this Act, rules framed thereunder and the bye-laws of the cooperative housing society by the Registrar…..” (Underlining ours).
Since these 16 new members were allotted flats by the Society without draw of lots after the draw of lots by the Registrar/DDA, it could not be examined by the Registrar whether their membership is proper in accordance with the Act, rules and the bye-laws. The Society has referred the cases of these 16 persons to the Registrar for approval, which may be given if the Registrar finds their membership in order. Pending examination and approval of the Registrar these members are not eligible to contest or participate in the election to the Managing Committee (MC). This is a clear legal position about which the Registrar has informed the President of the Society in his aforesaid memorandum dated 25.10.2006. The Registrar has obviously not decided on adjudicated on any issue, dispute or point, which would have necessitated hearing these 16 persons and Shri Madan Sharma; and the impugned order is actually not an order at all but only the statement of legal position emerging from an undisputed fact that these 16 persons have been enrolled as members and allotted flats after the draw of lots arbitrarily, as revealed to the Registrar by the report of the Inquiry Officer, Shri D. R. Chopra also. The fact that they have been wrongly allowed to vote and participate in earlier elections does not alter the legal position as stated in the Registrar’s letter. The Hon’ble Civil Court has also in a way confirmed this legal position by directing the Registrar to “make all efforts to expeditiously conclude the pending enquiry into financial irregularities committed” by Shri Madan Sharma “and also regarding regularisation of the plaintiff No.2 to 5 and others” (who are the 16 persons mentioned in the Registrar’s above mentioned letter dated 25.10.2006).
iii) The Hon’ble Civil Court has no jurisdiction in the matter as Section 132 (3) of the Act reproduced below bars the Court’s jurisdiction:
Section 132 (3)
“Save as provided in this Act, no order, decision or award made under this Act shall be questioned in any court on any ground whatsoever” (underlining ours)
A ‘Delhi Cooperative Tribunal’ has been set up under Section 114(1) of the Act for cases in which an appeal lies under Section 112 (1) of the Act. Since the Registrar’s letter dated 25.10.2006 to the President of Din C.G.H.S. Ltd. does not come under any category of appeal-able cases mentioned in (a) to (q) of Section 112(1) of the Act, the proceeding in which this letter has been issued by the Registrar is only subject to revision by the Government under Section 116(1) of the Act, which enables the Government to “of its own motion or an application made to it, call for and examine the record of the Registrar, in respect of any proceeding not being a proceeding in respect of which an appeal to the tribunal is provided by Section 114 to satisfy himself as to the regularity of such proceeding or the correctness, legality or propriety of any decision passed or order made therein and if, in any case, it appears to the Government that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, he may pass orders accordingly…”. In fact, one of the petitioners, before the Hon’ble Court, Shri Praveen Kumar, has already filed a revision petition dated 23.02.2007 before the Financial Commissioner (Revision Petition No.30/2007-8) under section 116 praying that the Inquiry Report dated 31.07.2006 mentioned in the Registrar’s letter dated 25.10.2006, on which this letter is based, “be set aside qua the petitioner…” which is pending. If this petition succeeds, the Registrar’s letter based on this Inquiry Report itself would become meaningless.
iv) By challenging the Inquiry Report itself, which is the very basis of the Registrar’s letter dated 25.10.2006, in his Revision Petition dated 23.02.2007, Shri Praveen Kumar has challenged the contents of this letter also; and “the matter directly and substantially in issue” in the Civil Suit filed before the Hon’ble Court on the same day is therefore the same. The principle of “res judicata” enshrined in Section 11 of the Civil Procedure Code thus clearly applies; and even if the Hon’ble Civil Court had the jurisdiction (which obviously it does not have) the Petitioners in this Civil Suit need to be directed by the Hon’ble Court to join in the Revision Petition before the Financial Commissioner (who has the jurisdiction) or go there independently or separately to seek redressal of their grievances.
v) The Hon’ble Court’s order dated 24.03.2007 directing that “the proposed election of the Managing Committee…. shall be kept in abeyance till further orders…..” has in effect suspended democracy and the democratic process in the Society; and created a legal impasse preventing the Registrar from performing his statutory duty of holding election on expiry of the term of the M.C., under the mandatory provisions in Section 35(5) of the Act. The present M.C’s 3 years term expired on 31.05.2005, and the Registrar had initiated the process of holding election which has now been postponed indefinitely allowing the present M.C., whose term expired nearly two and a half year ago, to illegally continue in office.
Section 35(5) of the Act provides that the M.C. “shall arrange election of the new committee before the expiry of its term and in case the committee fails to do so, the committee shall cease to hold office on the expiry of its term and the affairs of the cooperative society shall be managed by an administrator appointed by the Registrar who shall also hold election within 90 days from the date of his appointment”. The Hon’ble Court’s order staying the election till further orders has in effect rendered this mandatory provision of law inoperative.
When confronted with the situation they have landed the Society in, during the Special General Body Meeting held on 07 Oct 2007, Mr K Subramaniam resorted to the subterfuge that it was the sixteen new members who had got the stay order. He unabashedly assumed that the members would not have read the court order where-in the court had based its judgement on the Society and the Registrar of Cooperative Societies not having any objections to holding the elections in abeyance. He tried to hide from the members the fact that he had himself submitted, in writing, to the court that the Society does not have any such objections to elections being held in abeyance. By so doing, Mr K Subramaniam has tried to perpetuate his position as the President as well as damaged the democratic norms in the Society.
The Managing Committee led by Mr K Subramaniam was requested during the Special General Body Meeting held on 07 Oct 2007 to restore the democratic system in the Society, get the elections done and step down honourably and gracefully. Since he chose to ignore the request, the members of the Society are left with no alternative than to approach the High Court, Delhi to get the stay vacated in order to facilitate holding of elections. Members of the Society who have contributed Rs 1000/- each to meet the legal costs are as under:-
(a) Shri Ashok Kumar.
(b) Shri NN Srivastava.
(c) Shri Ramoday Singh.
(d) Shri AK Malpani.
(e) Dr AK Upadhyay.
(f) Shri Keshav Ranjan.
(g) Shri Kishan Lal Sharma.
(h) Col Jagdish Madan, Retd.
(i) Col RC Kapoor, Retd.
(j) Shri HS Monga.
(k) Shri Ranbir Singh.
(l) Shri AS Gulia.
(m) Shri LC Tomar.
(n) Shri VS Nagar.
(o) Shri Suresh Srivastava.
(p) Shri Balvir Singh.
(q) Mrs Shakuntala.
(r) Mrs Swapna Ghosh.
(s) Mrs Shukla.
(t) Mrs Jayni A Shekhar.
(u) Ms Urmil Malhotra.
(v) Mr Vineet Anand.
As regards the sixteen new members, the Registrar had ruled vide his letter No.F.47(852)GH/SW/Coop/3219, dated 25.10.06 that the 16 members mentioned therein “who have been enrolled arbitrarily after the draw of lots without the approval of the worthy R.C.S. are not eligible to contest the coming election of the Society till the finalisation of their cases”; and Shri Madan Sharma, ex-Secretary of the Society “is also not eligible to contest/participate in the election process on account of grave financial irregularities……made during his period as Secretary of the Society till the finalisation of the investigations….”.
The registrar also mentioned Section 77 (1) of the Delhi Cooperative Societies Act 2003 (hereinafter referred to as “the Act”) which stipulates that “Allotment of plots of land, flats, houses or other dwelling units shall be made …. to the members strictly on the basis of draw of lots only in respect of such members, whose enrolment as a member of a cooperative housing society is found proper in accordance with the provisions of this Act, rules framed there under and the bye-laws of the cooperative housing society by the Registrar…..”
i) The Registrar’s order dated 25.10.2006 is actually only a communication in the form of a addressed to the President of the Din C.G.H.S.Ltd., ii) The aforesaid communication from the Registrar is not an order – judicial, quasi-judicial or administrative – but only an information to the concerned members based on the following provision of the Delhi Cooperative Societies Act, 2003 (hereinafter referred to as “the Act”), reproduced below for convenience of reference:
Section 77 (1) “Allotment of plots of land, flats, houses or other dwelling units shall be made …. to the members strictly on the basis of draw of lots only in respect of such members, whose enrolment as a member of a cooperative housing society is found proper in accordance with the provisions of this Act, rules framed thereunder and the bye-laws of the cooperative housing society by the Registrar…..” (Underlining ours).
Since these 16 new members were allotted flats by the Society without draw of lots after the draw of lots by the Registrar/DDA, it could not be examined by the Registrar whether their membership is proper in accordance with the Act, rules and the bye-laws. The Society has referred the cases of these 16 persons to the Registrar for approval, which may be given if the Registrar finds their membership in order. Pending examination and approval of the Registrar these members are not eligible to contest or participate in the election to the Managing Committee (MC). This is a clear legal position about which the Registrar has informed the President of the Society in his aforesaid memorandum dated 25.10.2006. The Registrar has obviously not decided on adjudicated on any issue, dispute or point, which would have necessitated hearing these 16 persons and Shri Madan Sharma; and the impugned order is actually not an order at all but only the statement of legal position emerging from an undisputed fact that these 16 persons have been enrolled as members and allotted flats after the draw of lots arbitrarily, as revealed to the Registrar by the report of the Inquiry Officer, Shri D. R. Chopra also. The fact that they have been wrongly allowed to vote and participate in earlier elections does not alter the legal position as stated in the Registrar’s letter. The Hon’ble Civil Court has also in a way confirmed this legal position by directing the Registrar to “make all efforts to expeditiously conclude the pending enquiry into financial irregularities committed” by Shri Madan Sharma “and also regarding regularisation of the plaintiff No.2 to 5 and others” (who are the 16 persons mentioned in the Registrar’s above mentioned letter dated 25.10.2006).
iii) The Hon’ble Civil Court has no jurisdiction in the matter as Section 132 (3) of the Act reproduced below bars the Court’s jurisdiction:
Section 132 (3)
“Save as provided in this Act, no order, decision or award made under this Act shall be questioned in any court on any ground whatsoever” (underlining ours)
A ‘Delhi Cooperative Tribunal’ has been set up under Section 114(1) of the Act for cases in which an appeal lies under Section 112 (1) of the Act. Since the Registrar’s letter dated 25.10.2006 to the President of Din C.G.H.S. Ltd. does not come under any category of appeal-able cases mentioned in (a) to (q) of Section 112(1) of the Act, the proceeding in which this letter has been issued by the Registrar is only subject to revision by the Government under Section 116(1) of the Act, which enables the Government to “of its own motion or an application made to it, call for and examine the record of the Registrar, in respect of any proceeding not being a proceeding in respect of which an appeal to the tribunal is provided by Section 114 to satisfy himself as to the regularity of such proceeding or the correctness, legality or propriety of any decision passed or order made therein and if, in any case, it appears to the Government that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, he may pass orders accordingly…”. In fact, one of the petitioners, before the Hon’ble Court, Shri Praveen Kumar, has already filed a revision petition dated 23.02.2007 before the Financial Commissioner (Revision Petition No.30/2007-8) under section 116 praying that the Inquiry Report dated 31.07.2006 mentioned in the Registrar’s letter dated 25.10.2006, on which this letter is based, “be set aside qua the petitioner…” which is pending. If this petition succeeds, the Registrar’s letter based on this Inquiry Report itself would become meaningless.
iv) By challenging the Inquiry Report itself, which is the very basis of the Registrar’s letter dated 25.10.2006, in his Revision Petition dated 23.02.2007, Shri Praveen Kumar has challenged the contents of this letter also; and “the matter directly and substantially in issue” in the Civil Suit filed before the Hon’ble Court on the same day is therefore the same. The principle of “res judicata” enshrined in Section 11 of the Civil Procedure Code thus clearly applies; and even if the Hon’ble Civil Court had the jurisdiction (which obviously it does not have) the Petitioners in this Civil Suit need to be directed by the Hon’ble Court to join in the Revision Petition before the Financial Commissioner (who has the jurisdiction) or go there independently or separately to seek redressal of their grievances.
v) The Hon’ble Court’s order dated 24.03.2007 directing that “the proposed election of the Managing Committee…. shall be kept in abeyance till further orders…..” has in effect suspended democracy and the democratic process in the Society; and created a legal impasse preventing the Registrar from performing his statutory duty of holding election on expiry of the term of the M.C., under the mandatory provisions in Section 35(5) of the Act. The present M.C’s 3 years term expired on 31.05.2005, and the Registrar had initiated the process of holding election which has now been postponed indefinitely allowing the present M.C., whose term expired nearly two and a half year ago, to illegally continue in office.
Section 35(5) of the Act provides that the M.C. “shall arrange election of the new committee before the expiry of its term and in case the committee fails to do so, the committee shall cease to hold office on the expiry of its term and the affairs of the cooperative society shall be managed by an administrator appointed by the Registrar who shall also hold election within 90 days from the date of his appointment”. The Hon’ble Court’s order staying the election till further orders has in effect rendered this mandatory provision of law inoperative.
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