Skip to content


Balraj Madhok and ors. Vs. Registrar of Co-operative Societies and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 946 of 1973
Judge
Reported in11(1975)DLT238
ActsDelhi Co-operative Societies Act, 1972 - Sections 72(2) and 98; Delhi Cooperative Societies Rules, 1973 - Rule 25
AppellantBalraj Madhok and ors.
RespondentRegistrar of Co-operative Societies and ors.
Advocates: G.S. Vohra,; M.S. Vohra,; H.S. Dhir,;
Cases Referred(State of Uttar Pradesh v. Babu Ram Upadhya.
Excerpt:
(i) delhi co-operative society act (1972) - section 98-applicability of-existing member of a cooperative society, becoming disqualified on account of new rules-effect of section 92(1)-interpretation of statutes:; that the effect of secton 98 of the delhi cooperative societies act, like that of section 6 of the general clauses act, is to ensure that rights acquired under the repealed act, viz, bombay cooperative societies act as applicable to delhi, are not destroyed merely by the repeal of the act. this does not go to the extent of preventing the new act from taking away a right which had been acquired under the repealed act. it is a well settled principle of construction that a statute of parliament cannot deprive parliament of the powers of making a law in future contrary to the law..........a house or land for building a house in delhi continue to remain a member of a house building co-operative society in delhi this question which may affect many persons besides the petitioners arises for decision in this writ petition.(2) the petitioners became members of the shakti co-operative house building society (respondent 3), a body registered under the bombay co-operative societies act, 1925 as applied to delhi, prior to 1968. under section 71(2)(c) and (d) of the said act, the chief commissioner could make rules prescribing the matters in respect of which a society may make bye-laws and also prescribing the conditions to be complied with by persons applying for admission or admitted as members. the admission and the continuance of the petitioners as members of the society was.....
Judgment:

V.S. Deshpande, J.

(1) Can a person who has a house or land for building a house in Delhi continue to remain a member of a house building co-operative society in Delhi This question which may affect many persons besides the petitioners arises for decision in this writ petition.

(2) The petitioners became members of the Shakti Co-operative House Building Society (Respondent 3), a body registered under the Bombay Co-operative Societies Act, 1925 as applied to Delhi, prior to 1968. Under section 71(2)(c) and (d) of the said Act, the Chief Commissioner could make rules prescribing the matters in respect of which a society may make bye-laws and also prescribing the conditions to be complied with by persons applying for admission or admitted as members. The admission and the continuance of the petitioners as members of the society was governed by the bye-laws of the society framed in 1959. Those bye-laws did not prohabit a person who had a house or land on which a house could be built in Delhi from becoming a member. As a matter of policy, however, the Government thereafter seems to have decided that land allotted to co-operative societies should be leased out only to such members as do not have a house or a plot of land in Delhi. In 1968, thereforee, model bye-laws for house building co-operative societies were framed by the Government. These bye-laws were sent to the house building co-operative societies for adoption by them. It was obvious that those co-operative societies who would not adopt these bye-laws would not be given land by the Government to be leased to their members. The respondent 3 society adopted the new bye-laws. The following bye-laws of 1968 are relevant:-

5(I)(e):-'Any person shall be eligible to be a member of the society provided............he or his wife (she or her husband in case of a woman) or any of his/her dependents does not own a dwelling house in Delhi.'

8(VII):-'Aperson ceases to be a member......on undertaking the business of purchase and sale of houses or land for construction of houses either directly or indirectly or on purchasing a house or a plot of land for construction of house either in his own name or in the name of any of his dependents through any other source and the member shall, within one month of his undertaking the said business of purchase of a house or a plot of land shall inform the society about this.'

(3) The petitioners complain that the Registrar and the Assistant Registrar of Co-operative Societies, Delhi Administration, (Respondents 1 and 2) have on the strength of these bye-laws treated the petitioners as having ceased to be members of the respondent 3 society. The petitioners do not deny that they have houses in Delhi but they contend that they were nevertheless entitled to become members of the society under the bye-laws of 1959 and that the bye-laws of 1968 have no retrospective application so as to deprive them of their membership. The main relief prayed by the petitioners, thereforee, is for a declaration that they continued to be the members of the respondent 3 society and for the quashing of the action of the Respondents 1 and 2 treating them as non-members.

(4) Though the writ petition was filed on August 2, 1973, the petitioners did not refer to the effect of the coming into force of the Delhi Co-operative Societies Act, 1972 and the Delhi Co-operative Societies Rules, 1973, on April 2, 1973. The petitioners were also office bearers of the respondent 3 society and also complained of interference by the respondents 1 and 2 in the management of the society. Unless and until, however, the petitioners show themselves to be members of the society on the date on which the writ petition was filed, they would have no locus standi to make the aforesaid complaint. It is not, thereforee, necessary to consider any other question except the one raised above in dealing with this writ petition.

(5) The writ petition has been contested by the respondents 1 and 2. The respondent 3 is represented by different counsel for two rival managing bodies but we are not concerned here as to which of them has the right to represent the society. It has been pointed out on behalf of the respondents 1 and 2 that the petitioners have no locus standi to file this writ petition firstly because their membership came to an end when the amended bye laws of 1968 were adopted by the society. Secondly, at any rate, on the coming into force of the Delhi Co-operative Societies Act, 1972 and the rules framed there under from April 2, 1973, the petitioners definitely ceased to be members of the respondent 3 society. The defense has placed reliance on sections 92(1), 9(1) and 97(2)(v) of the new Act which are reproduced below:-

'92.Saving of existing societies.-(1) Every society now existing which has been registered under the Co-operative Credit Societies Act, 1904 or under the Co-operative Societies Act, 1912 or under the Bombay Co-operative Societies Act, 1925, as in force in the Union Territory of Delhi, shall be deemed to be registered under the corresponding provisions of this Act, and its bye-laws shall, so far as the same are not inconsistent with the express provisions of this Act, continue in force until altered or rescinded.'

(6) S. 9(1).-Registration.-If the Registrar is satisfied.-

(A)that the application complies with the provisions of this Act and the rules;

(B)that the objects of the proposed society are in accordance with section 4;

(C)that the proposed bye-laws are not contrary to the provisions of this Act and the rules; and

(D)that the proposed society has reasonable chances of success,

the Registrar may register the society and its bye-laws.'

'97.Rules.-(1) The Lieutenant Governor may, for any co-operative society or class of co-operative societies, make rules to carry but the purposes of this Act.

(2)In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely- (V)the conditions to be complied with by persons applying for admission or admitted as members, for the election and admission of members, and for the payment to be made and the interest to be acquired before the exercise of the right of membership.'

SHRIG. S. Vohra for the petitioners in his oral argument placed reliance on section 98(b) of the Act which is also reproduced below :--

'REPEALand savings.-On the day on which the Delhi co-operative Societies Act, 1972 comes into force, the Bombay Co-operative Societies Act, 1925, as in force in the Union territory of Delhi shall stand repealed:

Provided that the repeal shall not affect- (B)any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed............'

(7) The question whether the petitioners had continued to be members of the society on the date of the filing of the writ petition is to be decided in the light of the legal provisions, referred to above. The first part of the question is whether they ceased to be members when the amended bye-laws of 1968 came into force.

(8) What is the meaning of the expression 'eligible to be a member' used in the 1968 bye law No. 5(i) The verb 'be' has two meanings, namely, (a) to exist, and (b) to become. The former refers to the existence of state of affairs in presenti while the latter refers to the coming into existence of a new state of affairs. It is argued for the petitioners that the 1968 bye-law No. 5(i) refers only to the eligibility of a person to become a member. As the petitioners had already become members of the society prior to 1968, bye-law 5 (i) is not applicable to them. On the contrary, the respondents have urged that even a person who is already a member ceases to be eligible to continue as a member if he does not satisfy bye-law 5(i)(e). That is to say, if a person became a member of the society prior to 1968 and owned a dwelling house in Delhi and continued to own the house even after 1968, then he is not eligible to be a member in the sense that he is not eligible to continue to be a member of the society under the amended bye-laws. As against the contention of the petitioners that bye-law 5(i)(e) does not apply to existing members, it may be pointed out that bye-law 6 specifically says that 'original members are exempted from the provisions of bye-law No. 5 (i) (b)'. The inference from bye-law 6 is that even the original members are not exempted from the other parts of bye-law No. 5 including 5(i)(e). If it is applied to the original members, then one may be inclined to construe the word 'be' to mean 'to exist' in preference to its other meaning 'to become'. We may, just by way of illustration of an instance of legislative use of the word 'be' in the above sense, point out that in Article 102 of the Constitution also the word 'be' is used in the sense of 'exist' as contrasted to 'become'. Under Article 102(1) a person is disqualified for 'being chosen as' and also for 'being a member of either Houses of parliament' etc. The dichotomy there is between becoming a member and continuing to be a member of parliament. There is, thereforee, much to be said for the view that even under the 1968 bye-law No. 5(i) (e) the petitioners were disabled from continuing to be members of the society. We do not, however, need to base our decision of this case on the construction of bye-law No. 5(i)(e) inasmuch as, in our view the provisions of the Delhi Co-operative Societies Act, 1972 and the rules framed there under, to be considered later, are decisive to show that the petitioners could not, at any rate, continue to be members of the society after April 2, 1973.

(9) We agree with the contention of the petitioners that bye-law 8 (iii) regarding the cessation of membership is prospective in its application and, thereforee, did not apply to the petitioners.

(10) The next part of the question to be considered is the effect on the membership of the petitioners of the coming into force of the Delhi Co-operative Societies Act, 1972 and the rules framed there under from April 2, 1973. Firstly, as the society respondent 3 is deemed to be registered under section 9 of the Act of 1972 its bye-laws cannot be contrary to the provisions of the said Act and the rules made there under. Secondly, if the 1968 bye-law 5(i) (e) applied only to the admission of new members then the said bye-law would continue in force only up to April 2, 1973. For, it is inconsistent with the express provisions of the Act within the meaning of section 92(1) these provisions include the rules framed under the Act. Not, such rules are 'as officacious as the Act itself' (State of Uttar Pradesh v. Babu Ram Upadhya. (1968) 2 E.C.R. 679. Thirdly, the said bye-law is altered or reseinded within the meaning of section 92(1) by rule 25(2).

(11) Rule 25(2) of the Delhi Co-operative Societies Rules, 1973 is as follows:-

'25.Disqualifications for Membership-(2) Notwithstanding anything contained in the rules or the bye-law of the co-operative socitey, if a member becomes or has already become, subject to any disqualifications specified in subrule (1), he shall be deemed to have ceased to be a member from the date when the disqualifications were incurred.'

(12) This rule is inconsistent with bye-law 5(i) (v) even if the latter is construed in favor of the petitioner. Rule 25(2) clearly says that not only a person who becomes a member but also a person who has already become a member would be subject to the disqualifications specified in sub-rule (1) of rule 25 and such a person shall be deemed to have ceased to become a member from the date he incurred the disqualification. Rule 25(l)(i) disqualifies aperson from becoming a member if he owns a residential house or plot of land in Delhi. This rule has been framed under section 97(2)(v) which expressly empowers the framing of a rule which would affect not only persons applying for admission but also persons who were admitted as members already. It is to be noted that the same power to affect the membership of persons who have already become members by the making of rules was also given by section 71(2)(d) of the Bombay Co-operative Societies Act, 1925. The legislative intention underlying the rule-making sections of both these statutes is, thereforee, the same. The power to frame bye law is to be given to the Society by these rules. We do not know if respondent 3 society has framed any new bye-laws under the new rules. Assuming that the 1968 bye-laws still continue to be in force bye-law 5(i)(v) thereof ceases to be in force because it is inconsistent with rule 25(2) framed under the new Act if bye-law 5(i) (v) of 1968 is construed to refer only to persons applying to become members but not to persons who had already become members. If, on the other hand. it is construed to apply to persons who had already become members, then even before the coming into force of the new Act and the new rules, the petitioners had ceased to be members on the coming into force of the bye-laws of 1968. At any rate, the petitioners ceased to be members of respondent 3 society from April 2, 1973 when rule 25(2) came into force.

(13) Shri G. S. Vohra argued that the membership of the society was a right of the petitioners and that it was saved in favor of the petitioners by section 98(b) of the new Act. He went so far as to agrue that rule 25 (2) could not take away that right from the petitioners when the right was saved by section 98(b). This argument does not stand scrutiny. The effect of section 98 like section 6 of the General Clauses Act is only to ensure that rights acquired under the Act which is repealed are not destroyed merely by the repeal of the Act. This effect does not go to the extent of preventing the new Act from taking away a right which had been acquired under the repealed Act. It is a well settled principle that a statute of Parliament cannot deprive the Parliament of making a law in future contrary to the law which Parliament has already made in the past. This is why the inconsistency between a old and a new statute of the same Legislature results in an implied repeal of the old statute by the new statute to the extent of inconsistency. What was, thereforee, saved by section 98 has been taken away by section 92(1) read with rule 25(2). The bye-laws of 1968 could not be perpetual and could not be saved from the effect of their inconsistency with the new Act and the rules or from being altered or rescinded by the rules framed under the new Act. The disqualification for becoming a member is specified by rule 25(1) (i). Rule 25(2) says that the said disqualification will be incurred even by a person who has already become a member of the society. It, thereforee, applies to the petitioners who were already members before the new Act and the rules came into force. But by virtue of rule 25(2) the disqualification is deemed to have been incurred when the petitioners acquired houses or plots of land in Delhi. We are not really concerned with the retrospective effect of disqualification. It would be sufficient for our purpose to hold that on the date of the writ petition, namely, August 2, 1973, the petitioners had ceased to be members of the respondent 3 society. They were not entitled, thereforee, to maintain the rliefs prayed for in this writ petition. Their writ petition is, thereforee, dismissed on this ground alone without any order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //