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Awas Rahat Griha Nirman Sahkari Samiti Maryadit, Bhopal Vs. State of Madhya Pradesh, Bhopal and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 1296 of 1982
Judge
Reported inAIR1984MP164
ActsConstitution of India - Articles 13, 226 and 246; Madhya Pradesh Co-operative Societies Act, 1961 - Sections 57 and 60
AppellantAwas Rahat Griha Nirman Sahkari Samiti Maryadit, Bhopal
RespondentState of Madhya Pradesh, Bhopal and ors.
Appellant AdvocateY.S. Dharmadhikari, Adv.
Respondent AdvocateM.V. Tamaskar, Govt. Adv.
DispositionPetition allowed
Cases ReferredSuresh Koshy George v. University of Kerala
Excerpt:
.....like wind because of the interest taken by its members who are in govt. but for the interested members of the society, it was not possible to get this land allotted within such a short time in a posh locality like arera colony. by some disgruntled members of the society who failed in their attempt to get the plots of their choice. '18. section 57 of the act has been enacted with the aim and idea to fulfil the object of the whole scheme of the cooperative movement so that co-operative societies may not function arbitrarily in the manner they liked. in a welfare state like ours, it is inevitable that the organ of the state under our constitution is regulated and controlled by the rule of law. in a welfare state like ours, it is inevitable that-the jurisdiction of the administrative..........of land admeasuring 16.50 acres located in arera colony. bhopal.4. at the time of allotment of land, the society had only 79 members, but soon after, in february 1982. it was reported that the membership had gone up by 187 and later on 226. during the course of arguments, it was pointed out by the learned counsel for the petitioner society that some officers of gazetted rank and even of i. a. s. cadre, are also members of this society. this is also apparent from the action taken by the respondents in passing the allotment of the land. i.e. the application was made on 6-7-82 and if was dealt with like wind because of the interest taken by its members who are in govt. service and were interested in getting the desired plot in their favour. due to their efforts, the land applied for was.....
Judgment:

B.M. Lal, J.

1. This is a petition under Articles 226 and 227 of the Constitution.

2. The petitioner is a Co-operative Housing Society registered under the M.P. Co-operative Societies Act. 1960. It is styled as 'Awas Rahat Griha Nirman Sahkari Samiti Maryadit, Bhopal' hereinafter referred to as the Society.

3. The Society was registered in the year 1981. Its object was to get land from the respondent No. 1 for purposes of constructing residential houses for its respective members. For this purpose, the Society applied for land by its application D/- 6-7-1982, for allotment of land admeasuring 16.50 acres located in Arera Colony. Bhopal.

4. At the time of allotment of land, the Society had only 79 members, but soon after, in February 1982. it was reported that the membership had gone up by 187 and later on 226. During the course of arguments, it was pointed out by the learned counsel for the petitioner society that some Officers of gazetted rank and even of I. A. S. cadre, are also members of this Society. This is also apparent from the action taken by the respondents in passing the allotment of the land. i.e. the application was made on 6-7-82 and if was dealt with like wind because of the interest taken by its members who are in Govt. service and were interested in getting the desired plot in their favour. Due to their efforts, the land applied for was made available to the Society within such a short span of time.

5. The Society was informed by the Govt. by its' letter D/- 11-8-1982 (Annexure-1) that 13 acres of land was reserved for the Society and further by letter D/- 22-9-1982 (Annexure-2). addressed to the Collector. Bhopal. sanctioned advance possession of the land. This order of advance possession to the Society states terms and conditions for delivery of advance possession. Apart from other terms and conditions, some of the important conditions are as under : --

(3) (a). No person will be allowed to acquire a plot through a Cooperative Society, if-

(i) he or any of his near relations (father, mother, dependant brother, dependant sister or children) owns a residential plot in the city in which the Co-operative Society exists;

(ii) he has already been allotted elsewhere a residential plot through a Cooperative Society.

( b) Before taking possession, the Society should deposit the premium.

The most important term and condition mentioned in condition No. 7 in Annexure 2 is that if the Society does not fulfil any condition, the advance possession will be deemed to be cancelled. The Society, however, deposited Rs. 19.65,726.85 by different treasury challans by 26-9-1982 which is the Nazul rent and premium.

6. The Society was delivered possession of 13 acres of land. i.e. about 566280 sq. ft. of Kh. No. 299/82/2. located at village Shahpura (Char Imli) Bhopal. on 11-10-1982. It appears that allotment of land and delivery of possession were made within a span of 3 months only because of extra efforts of the members of the Society who are of I.A.S. Cadre. It is also apparent that the location of the land is between Arera Colony and Moulana Azad College of Technology. But for the interested members of the Society, it was not possible to get this land allotted within such a short time in a posh locality like Arera Colony. Bhopal.

7. The Society prepared the lay out according to which different sizes of plots of the dimensions of 60/40, 40/30. 40/25 and 40/121/2 sq. ft. were sanctioned by the Town Country Planning Department. Bhopal. by its 'order D/-28-12-1984. The Society, through its Managing Committee, in accordance with the resolution of the general body, D/-24-10-1982. started allotment of plots in favour of its members, but the respondent Govt. had not executed a regular lease deed in favour of the Society. The allotment order of the land was only done in accordance with the provisions of Revenue Book Circular. see. (iv) S. No. 1. vide Rule 26 under the heading 'Grant of land to the Housing Society'. Annexure 2 DA 22-9-1982 is in the shape of a licence and is not granted in favour of the petitioner by the State Govt. in exercise of some statutory provision of law, but it was granted in exercise of administrative functions. The Revenue Book Circular contains executive instructions. Hence a look at Annexure 2 shows that the State Govt. has not exercised its powers as quasi-judicial authority, but has exercised the powers under administrative authority.

8. We have said earlier taht membership of the Society had gone up to 226 because of the siluation of the land. Therefore, it appears that all members of the Society, particularly the I.A.S. Officers, wanted plots according to their own choice which it appears was not possible for the managing committee to make allotment of plots in favour of such interested' members, particularly I.A.S. Officers. Hence the influential members of the society by whose active help and interest, the society got the land, had shown their reluclance to help the society. On the other hand they exposed the management of the Society by alleging that certain allotment of plots was made by the Society in violation of the bye-laws and terms and conditions of allotment order in favour of professional traders who are already having land for housing purposes in the city of Bhopal in the names of their relatives. Therefore, the said allotment was against the bye-laws and the allotment order.

9. This action of favouritism and nepotism of the society was brought to the knowledge of the Govt. by some disgruntled members of the Society who failed in their attempt to get the plots of their choice. The Govt. by its order D/- 7-2-1983 (Annexure 5). directed the Society to maintain status quo.

10. The President of the Society further received Annexure P-7 from the Office of the Naib Tahsildar, Capital Project Bhopal. who was appointed by the State Govt. to make necessary enquiries into the affairs of the Society. The President of the Society was also directed to appear before the Naib Tahsildar on 25-2-1983 and to produce the relevant records and documents of the Society so that the Naib Tahsildar could send his enquiry report to the Govt. early.

11. In between, the Society also received orders D/-4-2-1983 and 8-2-1983 respectively from the Office of the Dy. Registrar, Co-operative Societies, Bhopal (Annexures 11 and 12) purported to have been passed under Sections 57 and 60 of the Cooperative Societies Act, 1960 (hereinafter referred to as the Act) for seizure of the records of the Society as it was reported that there were some illegalities and irregularities committed by the Society in allotment of the plots in favour of some members of the Society. Therefore, it had become necessary to make an enquiry into the affairs of the Society, i.e. regarding constitutional working and financial status of the society. Further, as no charge was handed over by the Society notwithstanding the order of the Dy. Registrar, the orders referred to above under Sections 57 and 60 of the Act were passed and Shri R.B. Guhe was appointed to take charge of the Society. However, somehow or the other, the Society managed not to hand over charge to Shri Guhe and instead started correspondence with the respondents.

12. The Dy. Registrar, by order D/- 15-4-1983 1 Annexure 14). informed thesociety on the basis of the report of Shri Guhe that inquiries relating to the action against ineffective members of the Society may be completed within 15 days and the Dy. Registrar be informed accordingly.

13. The petitioner Society, initially being aggrieved by the order of the Dy. Registrar relating to the handing over of charge of the Society and giving inspection of the Society, filed this petition before this Court on 22-4-1983 challenging the legality of the order passed by the Dy. Registrar on various grounds. During the pendency of the petition, the Society also received Annexure 17. D/- 2-6-1983 which is an order passed by the Govt. revoking the allotment order of the land D/- 22-9-1982 ( Annexure 2). Therefore, the petitioner amended the petition on 21-7-1983 by incorporating the order D/- 2-6-1983 in the petition as Annexure 17.

14. The petitioner in this petition has. challenged the orders D/-7-2-1983 ( Annexure 5), 8-2-1983 ( Annexure 11), 15-4-1983 (Annexure 14) and 2-6-1983 ( Annexure 17) on various grounds for' issuance of a writ of certiorari against respondent No. 1 and issue lease deed of 13 acres of land in favour of the Society with further directions that the respondents be restrained from interfering with the management of the society.

15. Respondents 1 to 5 have filed their joint return and having denied the averments of the petition, tried to justify their action taken vide Annexures 11. 14 and 17 which are under challenge on the ground, inter alia, that lot of complaints were rcceiveed against the illegal working of the Society even to the extent that plots were allotted by the Society in favour of certain members who were having plots and houses in the city of Bhopal. Therefore, the said allotment in favour of certain members of the Society was against the terms and conditions of the allotment order, bye-laws of the Society and Revenue Book Circular Rule 26 which specifically lay down as under :

(3) (a). No person will be allowed to acquire a plot through a Co-operative Society. if-

(i) he or any of his near relations father, mother, dependant brother, dependant sister or children owns a residential plot in the city in which the Co-operative Society exists :

(ii) he has already been allotted elsewhere a residential plot through a Co operative Society.

(b) Before taking possession, the Society should deposit the premium.

16. It is further contended that on receipt of complaints, the Revenue Minister ordered that execution of the lease deed be stayed. It is further stated that Govt. could enquire into the affairs of the Society, by invoking the relevant provisions of the Act and as such any action taken under Sections 57 and 60 of the Act against the Society is within the powers of the Dy. Registrar who has also submitted that respondent No. 5 had submitted his report (Annexure R.2) according to which the membership did not appear to be genuine and bona fide. The proper procedure was even not followed by the Society in admitting the members in accordance with the terms and conditions of the allotment order and bye-laws of the society, particularly bye-law No. 5 which has been completely overlooked. Grave illegalities and irregularities were found. Hence there was no alternative except to lake action under Sections 57 and 60 of the Act.

17. After hearing arguments of the learned counsel for the petitioner and respondents, we have come to the conclusion that the action taken under Sections 57 and 60 of the Act against the petitioner was justified under the facts and circumstances of the case. We see no illegality on the part of the respondents in taking action under Sections 57 and 60 of the Act. '

18. Section 57 of the Act has been enacted with the aim and idea to fulfil the object of the whole scheme of the cooperative movement so that Co-operative Societies may not function arbitrarily in the manner they liked. This section controls the Society from facricating the records. In the absence of provisions of Section 57. the function of the Society may become murky affair for its members who may be deprived of their legitimate rights by the influential members of the Society or by the office-bearers of the society and the very object of the co-operative movement will be frustrated. Therefore, we do not see any ground to hold that the provision of Section 57 is. in any manner, enacted against the Co-operative Jurisprudence. On the other hand, we have no hesitation to say that the provision of Section 57 of the Act has been enacted to safeguard the interests of the members of the Society so that under the fear of Section 57 of the Act. the office bearers of the society may not do any manipulations and fabrications in the records of the society. Further, we do not see that Section 57 is inconsistent with or in derogations of the fundamental rights. On the other hand, we see that the Slate Legislature is fully competent lo legislate such provision.

19. The next point urged very vehemently by the learned counsel for the petitioner was that respondent No. 1 had no authority or jurisdiction to revoke the order of allotment of land by passing the order ( Annexure 17) D/-2-6-l983 without affording any opportunity to the Society and without assigning any cogent reasons for justifying the revocation of the allotment' order D/-22-9-1982 (Annexure 2).

20. It is true that respondent No. 1. while issuing the allotment order D/- 22-9-I982. has not discharged its function under any statutory provision of law. Therefore, the order D/- 22-9-1982 cannot he construed as a quasi-judicial order. The orders D/-22-9-1982 and 2-6-1983 have been passed by the Govt. in administrate capacity- Hence the short question which arises for decision is whether before the revocation of any order passed in administrative capacity, the principles of natural justice have to be observed or not by giving show cause notice and opportunity of being heard.

21. The concept of natural justice has been elaborately discussed by the House of Lords in Ridge v. Baldwin 1964 AC 40. The said discussion finds place in catena of cases decided by the Hon. Supreme Court of India and this Court. The broad concept of natural justice is that the authorities or bodies which are given jurisdiction by statutory provisions to deal with the rights of the citizens, may he required by the relevant statutes to act judicially in dealing with matters entrusted to them. In such cases, the authorities or bodies must act in accordance with the principles of natural justice before exercising their jurisdiction and powers. The obligation to violate the principles of natural justice need not be expressly imposed. Powers to determine questions affecting the rights of the citizens would impose (he limitation that the power should be exercised in conformity with the principles of natural justice.

22. In democratic set up with the increase of powers with the administrative bodies, their Lordships of the Supreme Court have laid down the guidelines for exercise of powers by the administrative bodies. The relevant discussion finds place in A.K. Kraipak v. Union of India MR 1970 SC 150. It is as under ( Paras 13, 14 and 20) :

'The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power, one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power' is expected to be exercised. In a welfare State like ours, It is inevitable that the organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours, it is inevitable that-the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its validity if the instrumentalities of the Slate are not charged with the duly of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years, the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power. The following observations of Lord Parker. C.J.. in Reg. v. Criminal Injuries Compensation Board. Ex parte Lain (1967) 2 QB 864. at p. 881. are instructive. 'With regard to Mr. Bridge's second point, I cannot think that Atkin LJ. intended to confine his principle to cases in which the determination affected rights in the sense of enforceable rights. Indeed, in the Electricity Commissioner's case, the rights determined were at, any rale not immediately enforceable rights since the scheme laid down by the Commissioners had to he approved by the Minister of Transport and by resolutions of Parliament. The Commissioners nevertheless were held amenable to the jurisdiction of this court. Moreover, as can be seen from Rex v. Postmaster-General. Ex. parte Carmichael (1928) 1 KB 291 and Rex v. Boycott. Ex. parte Keasley (1939) 2 KB 651. the remedy is available even though the decision is merely a step as a result of which legally enforceable rights may be affected.

The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined. They have varied from time to time being extended to meet changing conditions. At one time, the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no Iis in the strict sense of the word. but where immediate or subsequent rights of citizen were affected. The only constant limits throughout were that it was performing a public duly. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract. that is from the agreement of the parties concerned.

Finally, it is to be observed that the remedy has now been extended, see Reg.v. Manchester Legal Aid Committee, Ex pane R.A. Brand and Co. Ltd. (1952) 2 QB 413. to eases in which the decision of an administrative officer is only arrived at after an inquiry or process of a judicial or quasi-judicial character. In such a case. this court has jurisdiction to supervise that process.

We have, as it seems to me. reached the position when the ambit of certiorari can he said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has lo determine mailers affecting subjects provided always that it has a duty to act judicially. Looked at in this way. the board in my judgment comes fairly and squarely. within the jurisdiction of this Court. It is. as Mr. Bridge said 'a servant of the Crown charged by the Crown, by executive instruction, with the duty of distributing the bounty of the Crown. It is clearly. therefore, performing public duties.'

The Court of Appeal of New Zealand has held that the power to make a zoning order under Dairy factory Supply Regulation 1936 has to be exercised judicially, see New Zealand and Dairy Board v. Okita Co-operative Dairy Co. Ltd. 1953 NZLR 366. This Court, in Purtabpore Co. Ltd. v. Cane Commr. of Bihar AIR 1970 SC 1896 held that the power to alter the area reserved under the Sugar-Cane (Control) Order. 1966 is a quasi-judicial power. With the increase of the power of the administrative bodies, it has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and lo sec that it does not become a new dispotism, Courts are gradually evolving the principles to be observed while exercising such powers. In matters like these, public good is 1101 advanced by a rigid adherence to precedents. New problems call for new solutions. It is neither possible nor desirable to fix the limits of a quasi-judicial power. But for the purpose of the present case we shall assume that the power exercised by the selection board was an administrate power and test the validity of the impugned selections on that basis.

The aim of the rules of natural justice is to secure justice or lo put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law of the land,' but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past, it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause ( Nemo debet esse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter, a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years, many more subsidiary rules came to be added to the rules of natural justice. Till very recently, it was the opinion of the courts that unless the authority concerned was required by (he law under which it functioned lo act judicially, there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice, one fails to sec why those rules should be made inapplicable to administrative enquiries. Often times, it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far-reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala AIR 1969 SC I98. the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame-work of the law under which the enquiry is held and the constritution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened, the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that ease.

23. Applying these principles, we have definitely reached to the conclusion that the Govt.. while revoking the order of grant by order D/- 2-6-1983 (Annexure 17). has not given any opportunity lo the petitioner Society in any manner whatsoever and for want of proper and adequate opportunity before revoking the allotment order, the revocation order D/-2-6-1983 cannot be sustained. We. therefore, quash the order D/- 2-6-1983 contained in Annexure 17. for non-observance of principles of natural justice.

24. No other point was pressed by the learned counsel appearing for the petitioner.

25. Before parting with the case, we must observe that the Govt. is not like a private individual who can pick and choose the person with whom it will deal, but the Govt. still remains a Govt. when it enters in even administrative largess and it cannot, without adequate reason, exclude any person from dealing with it or take away the rights of the citizens arbitrarily as has been done in the instant ease. The democratic form of Govt. demands equality and absence of arbitrariness and discrimination in any of the functions of the Govt. may be quasi-judicial or administrative function of the Govt. The activities of the Govt. have a public element and therefore, there should he fairness and equality. In the instant ease, for the reasons best known to the Govt., it has completely acted arbitrarily departing from the standard norms and therefore, we must, in the interest of not only the petitioner society, but in the interest of public- at large, say that such arbitrary action of the Govt. is not appreciable.

26. From the discussion aforesaid, we allow the petition, thereby quashing the impugned order D/- 2-6-1983 (Annexure 17). However, we make it clear that on enquiry, if the petitioner Society is found guilty in violating the terms and conditions of the allotment order, i.e. allotting the land in favour of members who are having plots or houses in their names or in the names of their near relatives, the GOM. shall be free to cancel the allotment order D/- 22-9-1983 contained in Annexure 2 after giving full opportunity to the petitioner Society as indicated above.

27. We pass no order as to costs. Security amount if deposited, he refunded to the petitioner.


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