Full Judgment Text
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PETITIONER:
H.C. SUMAN AND ANR.
Vs.
RESPONDENT:
REHABILITATION MINISTRY EMPLOYEES COOPERATIVEHOUSE BUILDING
DATE OF JUDGMENT29/08/1991
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
AGRAWAL, S.C. (J)
CITATION:
1991 AIR 295 1990 SCR Supl. (2) 552
1991 SCC Supl. (2) 421 JT 1990 (4) 474
1990 SCALE (2)942
ACT:
Delhi Cooperative Societies Act, 1972--Sections 12, 76
and 88--Rehabilitation Ministry Employees Cooperative House
Building Society Ltd. Applicability of bye-law--Validity
of--Notification dated 27. 10. 1987 issued by Lt. Governor.
HEADNOTE:
Respondent No. 1 is a Cooperative House Building Society
registered under the Delhi Cooperative Societies Act, 1972.
It was formed in October 1959, with a view to procure land,
which the Central Government proposed to allot for the
resettlement of displaced persons. The members of the Socie-
ty fail in three categories viz., (i) employees of the
Ministry of Rehabilitation, New Delhi (ii) employees of the
MiniStries in Delhi/New Delhi which were under the charge of
the Minister/Minister Of State of Rehabilitation Ministry
and (iii) employees working in the subordinate offices of
the Ministry/Department of Rehabilitation who were posted
outside Delhi/New Delhi and wanted to settle in Delhi after
their superannuation. It may be mentioned that the members
in the third category were enrolled as members pursuant to
the amended bye-law 5(1)(a) (iii), at the Society’s Managing
Committee’s meeting held on 17.11.1979. At the said meeting
the cases of 15 other members were also regularised, as the
affidavits furnished by them earlier were on scrutiny found
defective, which they had replaced by filing fresh affida-
vits.
The Society proceeded to make allotment of land to its
members and draw of lots was held on 14.12.1988. The draw of
lots was challenged by the appellants before the Delhi High
Court on the ground that they are senior to 15 persons
aforementioned and others. The appellants also challenged
,the validity of the Notification dated 27th October 1987
insofar as it made the amended bye-law 5(1)(a)(iii) effec-
tive retrospectively. The High Court having dismissed the
petition, the appellants have filed this appeal after ob-
taining special leave, and the question involved for deter-
mination in the appeal inter alia relates to the seniority
of the members of the society which constitutes the basis
for allot-
840
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ment of plots at the time of drawing of lots.
DiSmissing the appeal, this Court,
HELD: The notification dated 27th October, 1987, indi-
cates that by its earlier part the Lt. Governor has exempted
the society from the provision of Section 12 of the Act.
This was clearly permissible on a plain reading of Section
88. By its later part the notification provides that the
amended bye-law 5(1)(a) i(iii) "will have retrospective
effect with effect from 10.1.1968." The word "which" seems
to have been omitted after "as registered on 10.3.86" and
before "will have retrospective effect". It is clear not
only from the context of the notification but also from its
Hindi version. [849E-F]
What weighed with the Lt. Governor in passing the order
dated 10.8.1985 was that persons for whose benefit the bye-
law was sought to be amended had become members of the
society many years ago, that their names figured even in the
list of members which was supplied by the Society to the
Department of Rehabilitation and which formed the basis for
allotment of land to the society and that it would be
neither fair nor just to leave them in the lurch now by
depriving them of their membership when they cannot become
members of any other society. It was pointed out by the Lt.
Governor that the proposed amendment in the bye-law was
"designed to regularise such of the members." [855E-F]
The notification dated 29.8.1990 purports to rescind the
earlier notification dated 27th October 1987 only and does
not speak in clear terms that the quasi-judicial order dated
19.8.1985 was also being rescinded. On the facts and circum-
stances this hardly makes any difference inasmuch as even
though the quasi-judicial order dated 19th August 1985 has
not been expressly nullified, it has certainly for all
practical purposes been nullified by necessary implication.
This could not be done and the notification dated 29th
August 1990 is ultra vires on this ground alone. [857B-C]
A quasi-judicial order once passed and having become
final cannot be reviewed by the authority passing that order
unless power of review has been specifically conferred.
[856C]
The quasi-judical order dated 19th August, 1985 had been
passed by the Lt. Governor under Section 76 of the Act. No
power to review such an order has been conferred by the Act.
[856D]
841
Partap Singh v. State of Punjab, A.I.R. 1964 S.C. 72;
Kruse v. Johnson, [1898] 2 Q.B. 91; Registrar of Cooperative
Societies, Trivandrum & Anr. v.K. Kunhambu & Ors., [1980] 2
S.C.R. 260 at p. 267 and State of Kerala & Ors. v.K.G.
Madhhvan Pillai & Ors., [1988] 4 S.C.R. 669, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3382 of
1991.
From the Judgment and Order dated 19.5. 1989/24.5. 1989
of Delhi High Court in W.P. No. 2915 of 1988.
D.D. Thakur, V.C. Mahajan, N.S. Das Bahl, D.N. Puri,
Mukul Mudgal, Ms. A. Subhashini, K. Vasudev, S. Mathur, Syed
Ali Ahmad, Syed Tanweer Ahmed, S. Balakrishnan, M.K.D.
Nambodiri, P.P. Tripathi and Ms. Sangita Garg for the ap-
pearing parties.
The Judgment of the Court was delivered by
OJHA, J. Special leave granted.
This Civil appeal by special leave is directed against
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the order of the Delhi High Court dated 19th May, 1989 as
clarified by order dated 24th May, 1989 in Writ Petition No.
29 15 of 1988.
The facts in brief necessary for the decision of this
appeal are that some land was proposed by the Central
Government to be allotted for the resettlement of displaced
persons. In October 1959 the Rehabilitation Ministry Employ-
ees’ Cooperative House Building Society Ltd., New Delhi,
Respondent No. 1 (hereinafter referred to as the Society)
was formed and incorporated. After completing necessary
formalities an allotment of 60 acres of land was made by the
Central Government in favour of the Society which, however,
was subsequently cancelled on 7th May, 1979. The Society
challenged the aforesaid order of cancellation before the
Delhi High Court in Writ Petition No. 654 of 1979 which was
allowed by a Single Judge of that Court on 1st September,
1980. This judgment Was challenged by the Delhi-Development
Authority before the High Court in Letters Patent Appeal No.
254 of 1980 which was dismissed by a Division Bench of the
High Court on 5th January, 1981. Aggrieved by these orders
the Delhi Development Authority filed Special Leave Petition
(Civil) No. 3762 of 1981 before this Court in which the
parties entered into a compromise inter alia providing that
an area of 45 acres of land in
842
place of 60 was to be allotted to the Society and that
membership of the society was to be ’restricted to persons
who were members as on 1st September, 1980 in accordance
with the bye-laws of the SoCiety as then prevailing. 1st
September, 1980 was the date on which Writ Petition No. 654
of 1979 giving rise to Special Leave Petition (Civil) No.
3762 of 1981 had been allowed by the High Court. In pursu-
ance of the compromise learned counsel for the Delhi Devel-
opment Authority prayed for and was granted leave on 6th
May, 1982 to withdraw the said special leave petition. In
consequence, the order of the High Court stood modified in
the light of the compromise entered into between the par-
ties.
The Society thereafter proceeded to make allotment of
land to its members and draw of lots was held by the Society
on 14th December, 1988. This draw of lots was challenged by
the appellants before the Delhi High Court in Writ Petition
No. 29 15 of 1988 in which the orders appealed against were
passed. In order to appreciate the nature of dispute which
was raised in this writ petition with reference to the draw
of lots it is necessary to advert to some more facts.
Appellants 1 and 2 even though employees of Rehabilita-
tion Ministry stood posted in its subordinate offices out-
side Delhi. It appears that even though only such persons
who were employed and posted in the Rehabilitation Ministry
in Delhi itself were intended to be eligible for membership
of the Society, appellants 1 and 2 were enrolled as members
of the Society on 22nd November, 1972 and 11th January, 1974
respectively. Likewise, certain other persons who were not
employees of Rehabilitation Ministry but were employees of
departments which were under the charge of the
Minister/Minister of State of the Rehabilitation Ministry,
were also enrolled as its members by the Society.
With regard to such members who even though employees of
the Rehabilitation Ministry, Were posted outside Delhi, the’
Union Cabinet in 1977 accepted a suggestion to enable Cen-
tral Government employees serving outside Delhi to become
members of cooperative housing societies in Delhi. In pursu-
ance thereof the Lt. Governor of Delhi passed a consequen-
tial general order on 9th June, 1977 directing that the
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condition with regard to bona fide residents of Delhi will
stand relaxed to the extent that in case the Government
servant during the term of employment and with a view to
settle in Delhi after retirement has become a member of a
Cooperative House Building Society, he will not be debarred
from the membership of the Society simply on the
843
ground that he was not a resident of Delhi at the time of
enrolment. In pursuance of this general order the appellants
and some other similar persons who had been ,enrolled as
members by the Society became eligible to be members of the
Society and subsequently their membership was approved. As
regards those persons who were employed in other departments
under the charge of Minister/Minister of State of the Reha-
bilitation Ministry the Society by its Resolution dated 14th
December, 1980 proposed an amendment of the bye-laws so as
to enable such persons also to become eligible for member-
ship of the Society. The proposed amendment which was to be
inserted as bye-law 5(1)(a) (iii) was sent by the Society to
the Registrar for approval. The Registrar, however, refused
to approve and register the proposed amendment. Aggrieved,
the Society preferred an appeal before the Lt. Governor of
Delhi Which was allowed on 19th August, 1985. The Lt.
Governor directed the bye-laWs to be so amended as to pro-
vide for eligibility of employees of a Ministry of which
Department of Rehabilitation had been a part. In pursuance
of the aforesaid direction the amended bye-law 5(1)(a)(iii)
was registered and incorporated into the bye-laws by the
Registrar on 10th March, 1986.
At this place Section 12 of the Delhi Cooperative Socie-
ties Act, 1972 (hereinafter referred to as the Act) may be
referred to which provides that an amendment of the bye-laws
of a cooperative society shall, unless it is expressed to
come into operation on a particular day, come into force on
the day on which it is registered. Nothing to the contrary
having been provided in this behalf the amended bye-law
5(1)(a)(iii) was, in view of section 12 of the Act, to come
into operation from both March, 1986 on which date the said
amended bye-Law was registered as stated above. It appears
that realising this difficulty, the Society wrote to the
Registrar on 3rd February, 1987 to move the Lt. Governor for
relaxing the provisions of Section 12 of the Act. A reminder
was sent by the Society on 26th March, 1987 to approve the
aforesaid amended bye-law with retrospective effect. The
Registrar seems to have moved the Government accordingly and
necessary order in this behalf appears to have been passed
by the Lt. Governor, the terms whereof are to be found in a
Notification dated 27th October, 1987 issued by’ the Office
of the Registrar, Cooperative Societies which reads as
hereunder:
"OFFICE OF THE REGISTRAR COOPERATIVE
SOCIETIES
New Delhi the 27th October, 1987
844
NOTIFICATION
No. F. 46/2007/115/85/Bye-
laws/Coop/5398:- In exercise of the powers
conferred under Section 88 of the Delhi Coop-
erative Societies Act, 1972, the Lt. Governor
Delhi has been pleased to exempt the Rehabili-
tation Min. Emp. Coop. House Building Society
Ltd. New Delhi from the provision of Section
12 of the said Act in respect of the amended
bye-laws No: 5(1)(a) (iii) of’ the said socie-
ty as registered on 10.3.86 will have retro-
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spective effect from 10.1.1968, instead of
10.2.1986.
By Order on behalf of L.G., Delhi.
G.P. Sewallia, Spl. Secy. (Coop)"
The effect of the order of the Lt. Governor indicated in
the aforesaid Notification was that employees of other
departments under the charge of Minister/Minister of State
of Rehabilitation Ministry became eligible to the membership
of the Society with effect from 10th January, 1968. There
was a third category of members which too ’had given rise to
the disputes raised in Writ Petition No. 29 15 of 1988. One
of the conditions for being eligible to be a member of the
Society was that the person sought to be enrolled as a
member of the Society had to file an affidavit that he or
she did not own a residential house or plot either in his or
her name or in the name of his or her spouse, parents or
dependent relations. 15 persons had not, in their affidavits
filed along with their applications for membership, given
full particulars in this behalf. It appears that subsequent-
ly this lacuna having come to its notice the Society kept
their membership in abeyance and gave them an opportunity to
file fresh affidavits giving full particulars which they did
and on that basis their membership was regularised.
In the writ petition giving rise to this appeal Shri
S.C. Saxena, Secretary of the Society had filed an affidavit
which contained three lists. List ’A’ contained the names of
572 persons whose membership had been cleared both by the
Registrar of Cooperative Societies and the Ministry of Home
Affairs (Department of Rehabilitation) in accordance with
the dates of their enrolment. List ’B’ contained the names
of 26 members who were employees of the Ministries in Delhi/
New Delhi which were under the charge of the Minister/Minis-
ter of State of Rehabilitation Ministry. List ’C’ on the
other hand contained the names of such persons who were
employees in the subordinate
845
offices of the Ministry/Department of Rehabilitation and
were posted outside Delhi but wanted to settle in Delhi/New
Delhi after retirement. The appellants as noticed earlier
fell in the category of members shown in List ’C’. Their
membership had, in pursuance of the order of the Lt. Gover-
nor dated 9th June, 1977 referred to above, been approved by
the Society in the meeting of its Managing Committee held on
17th November, 1979. In the same meeting by another Resolu-
tion the membership of the 15 persons referred to above as
persons falling in the third category was also regularised
on the basis of the fresh affidavits filed by them. As
regards those members whose names were mentioned in List ’B’
aforesaid it has been pointed out by the High Court in the
judgment appealed against that "there is no dispute that the
membership of these 26 persons mentioned in List ’B’ was
either approved by the General Body in the meeting held on
8th July, 1970 or approved by the Managing Committee on 22nd
March, 1974 or by the Administrator on or before 9th June,
1976."
As regards members mentioned in List ’B’ the grievance
of the appellants before the High Court was that the order
of the Lt. Governor expressed in the Notification dated 27th
October, 1987 was ultra vires his powers in so far as it
made the amended bye-law 5(1)(a)(iii) effective retrospec-
tively from 10th January, 1968. As regards 15 persons of the
third category referred to above the grievance of the appel-
lants before the High Court on the other hand was that they
having filed fresh affidavits after the appellants had been
enrolled as members could not be given seniority over the
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appellants in the matter of drawing of lots. These conten-
tions having been repelled by the High Court by the orders
appealed against the appellants have preferred this civil
appeal in which subsequently various interlocutory applica-
tions for impleadment and other directions were made which
too are being considered hereinafter along with the appeal.
In the appeal the real question which arises for consid-
eration is about the seniority of the members of the Society
which constitutes the basis for allotment of plots at the
time of drawing of lots. As regards the seniority of the 15
members who have been referred to above as members falling
in third category namely those who had been accepted as
members of the society but subsequently whose membership was
kept in abeyance on some defects being notices in their
affidavits and who on an opportunity being given in this
behalf filed fresh affidavits giving full particulars and
were on the basis of such affidavits treated as regular
members, the appellants’ grievance has been, as noticed
earlier, that they having filed fresh affidavits after the
appellants had
846
been enrolled as members could not be given seniority over
the appellants. The High Court in the orders appealed
against has pointed out that the cases of these 15 persons
were scrutinised by the screening committee Who recommended
that they should be treated as regular member of the society
and share certificates be issued to them. It has, further,
been found by the High Court that these 15 persons were
admitted as members of the society either by the Managing
Committee or the General Body or the Administrator prior to
17th November, 1979 and that the record indicated that their
membership was kept in abeyance because of full information
not being furnished in their affidavits. It has held that
since the membership of 26 persons falling in category ’C’
including the appellants was for the first time approved by
the Managing Committee in its meeting held on 17th NOvember
1979 and the 15 persons referred to above had been admitted
as members prior to 17th November 1979 and in the meeting
held on 17th November, 1979 their membership was only regu-
larised, the 26 persons of Category ’C’ including the appel-
lants would obviously be junior tO the 15 members referred
to above. In our opinion, the view taken by the High Court
in this behalf does not suffer from any such error which may
justify interference under Article 136 of the Constitution.
Indeed no serious argument was addressed on this point on
behalf of the appellants.
Now, we advert to the main submission made on behalf of
the appellants with regard to the validity of the Order of
the Lt. Governor indicated in the notification dated 27th
October, 1987 giving the amended Bye-law No. 5(1)(a)(iii)
retrospective effect from 10th January 1968. Before dealing
with this plea, however, it is necessary to point out that
during the pendency of the special leave petition giving
rise to this appeal, the Lt. Governor issued another notifi-
cation dated 29th August, 1990, the relevant portion of
which reads as hereunder:
DELHI ADMINISTRATION, DELHI (COOPERATIVE DEPARTMENT)
OLD COURT’S BUILDING PARLIAMENT STREET:
NEW DELHI
Dated the 29th August, 1990
NOTIFICATION
No. F. 46/2007/115/85/Bye-laws/Coop./The Lt. Governor of the
Union Territory of Delhi is pleased to rescind his notifica-
tion No.
847
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F. 46/2007/115/86/Bye-laws/Coop/dated 27th October, 1987,
issued under Section 88-of the Delhi Cooperative Societies
Act, 1972 by which the Rehabilitation Ministry Employees
Cooperative House Building Society Ltd. was exempted from
the provisions of Section 12 of the said Act in respect of
the amended bye-law No. 5(1)(a)(iii) of the said Society.
with retrospective effect from 10.1.1968 instead of
18.2.1986.
By order and in the name of
the Lt. Governor of the
Union Territory of Delhi.
(A.C. KHER)
Spl. Secy. (Cooperation)
Delhi Administration, Delhi."
By Order dated 30th August, 1990 and a subsequent Order
dated 7th April, 1991 passed by this Court, the parties were
permitted to challenge the validity of this notification and
IA No. 13/1991 has been filed by Shri B.R. Puri and six
others in this behalf.
It has been urged by learned counsel for the appellants
that if the subsequent notification dated 29th August, 1990
is held to be valid the orders appealed against passed by
the High Court deserve to be set aside on that ground alone
inasmuch as they are based on the earlier notification dated
27th October, 1987 which has been rescinded. In the alterna-
tive, it has been urged that if the notification dated 29th
August, 1990 is held to be invalid, the orders appealed
against yet deserve to be set aside inasmuch as the earlier
notification dated 27th October, 1987 which forms the basis
of these orders is ultra vires.
Since the validity of the notification dated 29th Au-
gust, 1990 would to a large extent depend upon the true
nature and import of the earlier notification dated 27th
October, 1987 we propose to consider the question of the
validity of the notification dated 27th October, 1987 first.
As noticed earlier, it was in pursuance of the order passed
by the Lt. Governor on 19th August, 1985 that the amended
bye-law 5(1)(a)(iii), was registered and incorporated in the
Bye-laws by the Registrar on 10th March 1986. This order had
been passed by Lt. Governor in an appeal filed by the Socie-
ty against the order of the Registrar refusing to register
the aforesaid amendment and rejecting the proposal made in
this behalf by the Society. This appeal had obviously been
filed under Section 76(1)(b) of the Act and was entertained
848
and decided by the Lt. Governor in view of the provision
contained in this behalf in Section 76(2)(c) of the Act. It
cannot be disputed that the jurisdiction which the Lt.
Governor exercised in entertaining and deciding the appeal
was of a quasi-judicial character. For allowing the appeal
the Lt. Governor in his order dated 19th August, 1985 gave
the following reasons:
"The rest of the proposed amendments, which
are based on model bye-laws, with certain
modifications, are designed to regularise such
of the members, as were not the employees of
the Department of Rehabilitation, but were
employees of the Ministries, of which the
Department of Rehabilitation had been a part,
from time to time, under one Minister/Minister
of State. As these persons, whose number is
stated to be not large, became members of the
society many years ago, and their names also
figured, as has been stated by the counsel for
the appellant, in the list of members which
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was supplied by the society to the Department
of Rehabilitation, and which formed the basis
for the allotment of land to the society by
the Ministry of Rehabilitation, it would be
neither fair nor just to leave them in the
lurch now, by depriving them of their member-
ship, when they cannot become members of any
other society."
It would, thus, appear that what weighed with the Lt.
Governor apart from the other considerations stated in his
order was that the proposed amendment to the bye-laws was
"designed to regularise such of the members" ........
"whose number is stated to be not’ large" and who "became
members of the Society many years ago" and that "it would
neither be fair nor just to leave them in the lurch now, by
depriving them of their membership, when they cannot become
members, of any other society". If these were the considra-
tions which ’ weighed with the Lt. Governor in allowing the
proposed amendment it can hardly be denied that the purpose
of the order was not to give effect to the amended bye-law
from the date on which it was registered as contemplated by
Section 12 of the Act, which date in the instant case came
to be 10th March; 1986 but from the date on which the first
person under this category was enrolled as a member, for
otherwise the purpose of the order Was bound to be frustrat-
ed and the order would in that event be hit by the doctrine
of brutum fulmen. This quasi-judicial order passed by the
Lt. Governor has become final and
849
it was really to give effect to this order that the order of
the Lt. Governor referred to in the notification dated 27th
October, 1987 was passed. In the normal course, it would not
be just and proper to interfere with such an order under
Article 136 of the Constitution.
Learned counsel for the appellants has, however, strenu-
ously urged that the notification dated 27th October, 1987
is ultra vires the powers of the Lt. Governor. He pointed
out that Section 88 of the Act under Which the said notifi-
cation was issued does not authorise the issue of a notifi-
cation such as the notification dated 27th October, 1987.
Having given our anxious consideration to the submissions
made by learned counsel in this behalf, we find it difficult
to agree with them. Section 88 of the Act may usefully be
reproduced here. It reads:
"88. Power to extempt cooperative societies
from provisions of the Act.--The Lt. Governor
may, by general order, to be published in the.
Delhi Gazette, exempt any cooperative society
or any class of cooperative societies from any
of the provisions of this Act, or may direct
that such provisions shall apply to such
societies or class of societies with such
modifications as may be specified in the
order."
The notification dated 27th October, 1987 has already
been quoted above. Its perusal indicates that by its earlier
part the Lt. Governor has exempted the society from the
provision of Section 12 of the Act. This was clearly permis-
sible on a plain reading of Section 88. By its later part
the notification provides that the amended bye-law
5(1)(a)(iii) "will have retrospective effect with effect
from 10.1. 1968." The word "Which" seems to have been omit-
ted after "as registered on 10.3.86" and before "will have
retrospective effect". It is clear not only from the context
of the notification but also from its Hindi version a photo-
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stat copy whereof has been produced before us. Transliterat-
ed in Roman Script, it reads:
"Dilli ke up Rajyapal, Dilli Sahkari Samitiyan
Adhiniyam 1972 ki dhara 88 ke Antargat pradatt
Shaktiyon ka prayog karte hue the Rehabilita-
tion Ministry Employees Cooperative Society
Ltd. naee Dilli ko ukta Adhiniyam ki dhara 12
me diye gaye pravidhan. ke anusar ukta Samiti
ko bye-laws me dhara 5(1)(a) tatha (iii) me
sanshodhan dinank 10.3.86 ki apeksha 10.1.68
se lagu hone ki chhut dete hain."
According to the Hindi version, the Society has been permit-
ted
850
to enforce the amended bye-law 5(1)(a)(iii) with effect from
10.1.68. Section 12 contemplates "unless it is expressed to
come into operation on a particular day". The notification
really permits to express 10.1.68 as the particular day on
which the amended bye-law aforesaid is to come into opera-
tion. Suppose the notification dated 27th October, 1987 had
said "At the end of Section 12 of the Act add-provided that
the amendement of the bye-law made by the Rehabilitation
Ministry. Employees Cooperative House Building Society
Ltd...., New Delhi, shall come into force on 10.1.68".
Could it be said that this would be beyond the power con-
ferred by Section 88 of the Act? The answer would have to be
in the negative on a plain reading of Section 88. Except for
the unhappy language used therein the notification dated
27th October, 1987, does not seem to have been issued by the
Lt. Governor in excess of the powers conferred on him by
Section 88 of the Act. In such matters, substance has to
prevail over the form. We have been informed by learned
counsel for the appplicants in IA No. 13 of 1991 that 10th
January, 1968 mentioned in the notification dated 27th
October, 1987 is the date on which the first member failing
in category ’B’ referred to above had applied for enrolment.
As indicated above this was really the purpose of the
quasi-judicial order dated 19th August, 1985 passed by the
Lt. Governor in the appeal filed by the Society and the
notification has obviously been issued to subserve that
purpose. In so far as we have taken the view that the word
"which" seems to have been omitted in the Notification dated
27th October, 1987 and it has to be read there, we may point
out that in Surjit Singh v. Kalra, [1991] 2 SCC 87 it has
been held in paragraph 19 of the Report:
"True it is not permissible to read words in a
statute which are not there, but "where the
alternative lies between either supplying by
implication words which appear to have been
accidentally omitted, or adopting a construc-
tion which deprives certain existing words of
all meaning, it is permissible to supply the
words" (Craies Statute Law, 7th edn., p. 109).
Similar are the observations in Hameedia
Hardware Stores v.B. Mohan Lal Sowcar, [1988]
2 SCC 513 where it was observed that the court
construing a provision should not easily read
into it words which have not been expressly
enacted but having regard to the context in
which a provision appears and the object of
the statute in which the said provision is
enacted the court should construe it in a
harmonious way to make it meaningful. An
attempt must always be made so to reconcile
the relevant provisions as to advance the
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remedy intended by the
851
statute. (See: Sirajul Haq Khan v. Sunni
Central Board of Waqf, [1959] SCR 1287."
Learned counsel for.the appellants then urged that a
delegated legislation could not be given retrospective
effect unless it was specifically provided for. He relied on
the following passages from Wade on Administrative Law
(Fifth Edition):
"It follows likewise that the courts must
determine the validity of delegated legisla-
tion by applying the test of ultra vires, just
as they do in other contexts. Delegated legis-
lation in no way partakes of the immunity
which Acts of Parliament enjoy from challenge
in the courts, for there is a fundamental
difference between a sovereign and a subordi-
nate law making power. Acts of Parliament have
sovereign force, but legislation made under
delegated power can be valid only if it con-
forms exactly to the power granted." (page
748).
"Whether delegated legislation can
have retrospective operation without express
Parliamentary sanction is a question upon
which there is scant authority. It is natural
to presume that Parliament is unlikely to
confer a power which it uses only most spar-
ingly itself." (page 751).
"Just as with other kinds of admin-
istrative action, the courts must sometimes
condemn rules or regulations for unreasonable-
ness. In interpreting statutes it is natural
to make the assumption that Parliament could
not have intended powers of delegated legisla-
tion to be exercised unreasonably, so that the
legality of the regulations becomes dependent
upon their content." (page 752).
Reference was made to similar passages even from Maxwell
on the Interpretation of Statutes and Vepa P. Sarthi’s
Interpretation of Statutes. Certain decisions of this Court
were. also cited in support of the above propositions-
Relying on Partap Singh v. State of Punjab, AIR 1964 SC 72
it was further urged that mala fides vitiates an order.
Even though there can be no dispute with the legal
propositions enunciated above we find it difficult to apply
them in the instant Case to nullify the notification dated
27th October, 1987. Firstly, the power exercised by the Lt.
Governor as indicated earlier was within the ambit
852
of and permissible under Section 88 of the Act, Secondly,
keeping in view the facts of the instant case and the pur-
pose of amending bye law 5(1)(a)(iii) we find that the
notification is neither unreasonable nor can any mala fide
be attributed in issuing the same.
In Kruse v. Johnson, [1898] 2 Q.B. 91, it was held that
in determining the validity of bye-laws made by public
representative bodies, such as county councils, the Court
ought to be slow to hold that a bye-law is void for unrea-
sonableness. A bye-law so made ought to be supported unless
it is manifestly partial and unequal in its operation be-
tween different classes, or unjust, or made in bad faith, or
clearly involving an unjustifiable interference with the
liberty of those subject to it. In view of this legal posi-
tion the notification dated 27th October, 1987 deserves to
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be upheld as, in our opinion, it does not fall within any of
the exceptions referred to in the case of Kurse v. Johnson
(supra).
Learned counsel for the appellants further submitted
that the notification dated 27th October, 1987 had the
effect of defeating the purpose of the Act and was conse-
quently bad. Reliance was placed on Registrar of Cooperative
Societies, Trivandrum and Anr. v. K. Kunhambu & Ors., [
1980] 2 SCR 260 at p. 267 where with reference to Section 60
of the Madras Cooperative Societies Act, 1932, it was held:
"Section 60 empowers the State Government to
exempt a registered society from any of the
provisions of the Act or to direct that such
provision shall apply to such society with
specified modifications. The power given-to
the Government under Section 60 of the Act is
to be exercised so as to advance the policy
and objects of the Act, according to the
guidelines as may be gleaned from the preamble
and other provisions which we have already
pointed out, are clear."
We are of the view that the said Notification cannot be held
to be bad on this score as well for the simple reason that
the bye-law 5(1)(a)(iii) introduced by amendment consequent
upon the quasijudicial order of the Lt. Governor passed in
appeal on 19th August, 1985 has not been challenged on the
ground that it was beyond the power conferred by the Act.
What has been challenged is the retrospective operation
thereof. As seen above, if the amended bye-law was not made
retrospective its very purpose was to stand defeated. So far
as the Notification dated 27th October, 1987 is concerned,
it really subserves the purpose of the amended bye-law made
under the Act
853
and does not defeat it.
Lastly, it was urged by learned counsel for the appel-
lants that at worst the effect of the Notification is that
the amended bye-law 5(1)(a)(iii) would be deemed to be there
with effect from 10.1.68 but from that fact alone the re-
spondents could not become members unless their membership
was approved as contemplated by Rule 24 of the Delhi Co-
operative Societies Rules, 1973. Suffice it to point out so
far as this submission is concerned that with regard to
members whose names were mentioned in List ’B’ of the affi-
davit.filed by Shri S.C. Saxena before it, the High Court,
as already noticed earlier, has held in the judgment ap-
pealed against that "there is no dispute that the membership
of these 26 persons mentioned in List ’B’ was either ap-
proved by the General Body in the meeting held on 8th July,
1970 or approved by the Managing Committee on 22nd March,
1974 or by the Administrator on or before 9th June, 1976."
If the Notification dated 27th October, 1987 is valid it
had by legal fiction the effect of making persons mentioned
in List ’B’ aforesaid eligible for membership of the Society
with effect from 10th January, 1968 and the approval of the
membership of these persons on various dates as pointed out
by the High Court could not be held to be invalid simply
because those dates happened to be prior to the date on
which bye-law 5(1)(a)(iii) was actually incorporated in the
bye-laws of the Society. As pointed out by Lord Asquith in
East End Dwellings Co. Ltd. v. Finisbury Borough Council,
[1952] Appeal Cases 109 at p. 132, if you are bidden to
treat an imaginary state of affairs as real, you must sure-
ly, unless prohibited from doing so, also imagine as real
the consequences and incidents which, if the putative state
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of affairs had in fact existed, must inevitably have fol-
lowed from or accompanied it and that when the statute says
that you must imagine a certain state of affairs, it does
not say that having done so, you must cause or permit your
imagination to boggle when it comes to the inevitable corol-
laries of that state of affairs.
Learned counsel for the appellants, however, urged that
the aforesaid principle of legal faction cannot be invoked
to put life in a still-born action and relied on the deci-
sion of this Court in B. Shama Rao v. The Union Territory of
Pondicherry, [1967] 2 SCR 650. Having gone through the
decision we are of the view that it is clearly distinugisha-
ble. The facts of that case were that the legislative assem-
bly for the Union Territory of Pondicherry passed the Pondi-
cherry General Sales Tax Act (10 of 1965) which was pub-
lished on June 30,
854
1965. Section 1 (2) of the Act provided, that it would come
into force on such date as the Pondicherry Government may,
by notification, appoint and s. 2(1) provided that the
Madras General Sales Tax Act, 1959, as in force in the State
of Madras immediately before the commencement of the Pondi-
cherry Act, shall be extended to Pondicherry subject to
certain modifications, one of which related to the constitu-
tion of the Appellate Tribunal. The Act also enacted a
Schedule, giving the description of goods, the point of levy
and the rates of tax. The Pondicherry Government issued a
notification on March 1, 1966, appointing April 1,. 1966 as
the date of commencement. Prior to the issue of the notifi-
cation, the Madras legislature had amended the Madras Act
and consequently it was the Madras Act as amended up to
April 1, 1966 which was brought into force in Pondicherry.
When the Act had come into force, the petitioner was
served with a notice to register himself as a dealer and he
thereupon filed a writ petition challenging the validity of
the Act.
After the petition was filed, the Pondicherry Legisla-
ture passed the Pondicherry General Sales Tax (Amendment)
Act’, 13 of 1966, whereby s. 1(2) of the principal Act was
amended to read that the latter Act "shall come into force
on the 1st day of April 1980", it was also provided that all
taxes levied or collected and all proceedings taken and
things done were to be deemed valid as if the principal Act
as amended had been in force in all material times.
On these facts it was held that the Act of 1965 was void
and still-born and could not be revived by the amendment Act
of 1966. In this connection it was pointed out at page 660:-
"In the present case it is clear that the
Pondicherry legislature not only adopted the
Madras Act as it stood at the date when it
passed the Principal Act but also enacted that
if the Madras legislature were to amend its
Act prior to the date when the Pondicherry
government would issue its notification it
would be the amended Act which would apply.
The legislature at that stage could not antic-
ipate that the Madras Act would not be amended
nor could it predicate what amendment
or amendments would be carried out or whether
they would be of a sweeping character or
whether they would be suitable in Pondicherry.
In point of fact the Madras Act was amended
and by reason of section 2(1) read with sec-
tion 1(2) of the Principal Act it was the
855
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amended Act which was brought into operation
in Pondicherry. The result was that the Pondi-
cherry legislature accepted the amended Act
though it was not and could not be aware what
the provisions of the amended Act would be.
There was in these circumstances a total
surrender in the matter of sales tax legisla-
tion by the Pondicherry Assembly in favour of
the Madras legislature and for that reason we
must agree with Mr. Desai that the Act was
void or as is often said ’still-born’."
Such is obviously not the position in the instant case.
In view of what has been discussed above no exception can be
taken to the view of the High Court holding the said Notifi-
cation to be valid.
The question of validity of the subsequent Notification
dated 29th August, 1990 whereby the earlier Notification
dated 27th October, 1987 was rescinded may now be consid-
ered. As noticed earlier, the Lt. Governor had passed the
quasi judicial order on 19th August 1985 in an appeal flied
by the society against the order of the Registrar declining
amendment of the bye-law concerned. Relevant findings of the
Lt. Governor along with the reasons there for have already
been extracted above. We have already pointed out that what
weighed with the Lt. Governor in passing that order was that
persons for whose benefit the bye-law was sought to be
amended had become members of the society many years ago,
that their names figured even in the list of members which
was supplied by the society to the Department of Rehabilita-
tion and which formed the basis for allotment of land to the
society and that it would be neither fair nor just to leave
them in the lurch now by depriving them of their membership
when they cannot become members of any other society. It was
pointed out by the Lt. Governor that the proposed amendment
in the bye-law was "designed to regularise such of the
members". From the tenor of this order there can be no
manner of doubt that the order was passed with a view to
ensure that the persons who had become members of the socie-
ty many years ago should get the benefit of the amended
bye-law by having their membership regularised. Such members
could obviously get the benefit of the bye-law only if it
was made retrospectively effective. The order of the Lt.
Governor did not contemplate fresh enrolment of those per-
sons as members after the passing of that order and the
bye-law being amended in consequence thereof but it contem-
plated regularisation of their membership. This clearly
indicated that those persons were sought to be treated as
members as from the dates on which they had factually become
members
856
of the society. We have also pointed out above that in our
opinion in having the notification dated 27th October, 1987
issued, the Lt Governor only took steps to give effect to
the quasi judicial order could be achieved. This being the
true nature of the notification dated 27th October, 1987,
the Lt. Governor cannot be said to have in any manner re-
viewed the quasi-judicial order dated 19th August, 1985. On
the other hand, the subsequent notification dated 29th
August, 1990 even though purported to rescind that earlier
notification dated 27th October, 1987 only it had keeping in
view the nature and purpose of the notification dated 27th
October, 1987 really the effect of reviewing and nullifying
the quasi-judicial order passed by the Lt. Governor on 19th
August, 1985. In a matter such as this, it is the substance
and the consequence of the notification dated 29th August,
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1990 which has to be kept in mind while considering the true
import of that notification. It is settled law that a
quasi-judicial order once passed and having become final
cannot be reviewed by the authority passing that order
unless power of review has been specifically conferred. The
qausijudical order dated 19th August, 1985, as seen above,
had been passed by the Lt. Governor under Section 76 of the
Act. No power to review such an order has been conferred by
the Act. In G.V. Rao v. Govt. of Andhra Pradesh and Ors.,
[1966] 2 SCR, p. 172, an order had been passed by the Gov-
ernment under Section 62 of the Andhra Pradesh Panchayat
Samithies and Zila Parishads Act. 1959, it was subsequently
reviewed. The validity of this order of review was in ques-
tion in that case. No power of review had been conferred for
review of an order passed under Section 62. What was, howev-
er, argued was that the Government was competent to review
that order in exercise of power conferred by Section 13 of
the Madras General Clauses Act, 1891. Repelling this argu-
ment, it was held:
"The learned counsel for the State then con-
tended that the order dated April 18, 1963,
could itself be sustained under s. 62 of the
Act. Reliance is placed upon s. 13 of the
Madras General Clauses Act, 1891, whereunder
if any power is conferred on the Government,
that power may be exercised from time to time
as occasion requires. But that section cannot
apply to an order made in exercise of a quasi-
judicial power. Section 62 of the Act confers
a power on the Government to cancel or suspend
the resolution of a Panchayat Samithi, in the
circumstances mentioned therein, after giving
an opportunity for explanation to the Panchay-
at Samithi. If the Government in exercise of
that power cancels or confirms a resolution to
the Panchayat
857
Samithi, qua that order it becomes functus
officio. Section 62, unlike s. 72 of the Act
does not confer a power on the Government to
review its orders. Therefore, there are no
merits in this contention."
We are aware that the notification dated 29th August,
1990 purports to rescind the earlier notification dated 27th
October, 1987 only and does not speak in clear terms that
the quasi-judicial order dated 19th August, 1985 was also
being rescinded. On the facts and circumstances of this
case, as emphasised above, we are of the opinion that this
circumstance hardly makes any difference inasmuch as even
though the quasi-judicial order dated 19th August, 1985 has
not been expressly nullified, it has certainly for all
practical purposes been nullified by necessary implication.
This, in our opinion, could not be done and the notification
dated 29th August, 1990 is ultra vires on this ground alone.
The matter can be looked at from another angle also. It
cannot be disputed that as a consequence of the quasi-judi-
cial order of the Lt. Governor dated 19th August, 1985 and
the notification dated 27th October, 1987, a substantive
right was created in favour of the 26 persons whose names
had been mentioned in list ’B’ of the affidavit by Shri S.C.
Saxena filed in the High Court. The challenge to that noti-
fication had already failed before the High Court and the
matter was subjudice before this Court in special leave
petition giving rise to this civil appeal when the notifica-
tion dated 29th August, 1990 was issued. The notification
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dated 27th October, 1987 had specifically been issued under
s. 88 of the Act. Even though the subsequent notification
dated 29th August, 1990 does not disclose the source of the
power under which it had been issued, learned counsel for
the appellants traced its source to s. 88 itself read with
the powers to add, to amend, vary or rescind notifications,
orders, rules or bye-laws contained in s. 21 of the General
Clauses Act, 1897. In State of Kerala and Ors. v. K.G.
Madhavan Pillai and Ors., [1988] 4 SCR p. 669, it was held
by the High Court that if in pursuance of an earlier order
passed by the Government some person acquires a right en-
forceable in law, the said right cannot be taken away by a
subsequent order under general power of rescindment avail-
able to the Government under the General Clauses Act and
that the said power of rescindment had to be determined in
the light of the subject matter, context and the effect of
the relevant provisions of the statute. The view taken by
the High Court was upheld by this Court in paragraph 27 of
the report. The notification dated 29th August, 1990, would,
therefore, be invalid on this ground also. In view of the
foregoing discussion, the civil appeal deserves to be dis-
missed.
858
At this place we consider it proper to make a note that
learned counsel for the applicants in IA 13 of 1991 had
attacked the Notification dated 29th August, 1990 on two
other grounds also. One was that the said Notification was
vitiated for breach of principles of natural justice, it
having taken away vested rights of the applicants created by
the quasi-judicial order of the Lt. Governor dated 19th
August, 1985 and the Notification dated 27th October, 1987,
and the other that the effect of dismissal of an earlier
Special Leave Petition by this Court on 19th March, 1990
could not be nullified by the Notification dated 29th Au-
gust, 1990, In the view we have taken we have not found it
necessary to go into these questions.
We now take up Interlocutory Applications made in the
appeal. Some of these applications have already been dis-
posed of by various orders passed from time to time. The
only applications which are surviving are IA No. 1/89, IA
Nos. 4 and 5/89, IA Nos. 6 and 8/89 and IA No. 13/91. The
nature and purpose of IA No. 13/91 has already been indicat-
ed above: Since the notification dated 29th August, 1990 has
been, found by us to be ultra vires and the civil appeal is
being dismissed, this application deserves to be allowed. So
does IA No. 1/89 also which has been made by the same cate-
gory of members Who have made IA No. 13/91. The applicants
in IA Nos. 6 and 8/89 have taken the same stand as the
appellants and their learned counsel has before us also
adopted the arguments made by learned counsel for the appel-
lants. Since the appeal is being dismissed, no further order
on IA Nos. 6 and 8/89 is necessary. The appellant in IA Nos.
4 and 5/89 was really aggrieved by the interim order passed
by this Court in the special leave petition on 19th July,
1989 and since with the dismissal of the appeal the said
interim order will automatically stand vacated, no further
order in these applications also is necessary.
In the result, the appeal fails and is dismissed. Orders
on the interim applications aforementioned shall be as
already indicated hereinabove. They are disposed of accord-
ingly. In the circumstances of the case, however, the par-
ties shall bear their own costs.,
Y.Lal.
Appeal dismissed.
859
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