TMI Blog2010 (10) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... the fiction is created, and it must be limited to the purpose indicated by the context and cannot be given a larger effect. More so, what can be deemed to exist under a legal fiction are merely facts and no legal consequences which do not flow from the law as it stands. It is a settled legal proposition that in absence of any statutory provision, the provision cannot be construed as to provide for a fiction in such an eventuality. More so, creating a fiction by judicial interpretation may amount to legislation, a field exclusively within the domain of the legislature. Writ of certiorari - The High Court ought to have considered that it was a writ of certiorari and it was not dealing with an appeal. The writ of certiorari under Article 226 of the Constitution can be issued only when there is a failure of justice and it cannot be issued merely because it may be legally permissible to do so. There must be an error apparent on the face of record as the High Court acts merely in a supervisory capacity. An error apparent on the face of the record means an error which strikes one on mere looking and does not need long drawn out process of reasoning on points where there may conceivably ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed an order dated 26-8-1997 rejecting the approval of the expulsion of the appellants and other members. Being aggrieved, the Society preferred a revision before the Financial Commissioner which was also dismissed vide order dated 3-11-1997. 4. The Society challenged the aforesaid orders of the Financial Commissioner as well as of the Registrar by filing Writ Petition before the Delhi High Court which has been allowed. Hence, this appeal. 5. Shri D.N. Goburdhan, learned counsel appearing for the appellants has submitted that the High Court has mis-directed itself and did not decide the core issue involved in the case. The High Court has held that in case the resolution sent by the Society is not considered and decided finally by the Registrar within a period of 6 months as required under Section 36(3) of the Act 1972, it will be deemed to have been approved, though, there is no such deeming provision under the Act 1972. The High Court further committed an error extending the period of 6 months to 1 year re-legislating the statutory provision. More so, there is no reference to the findings recorded by the Financial Commissioner and the Registrar in their impugned orders and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. v. State of Orissa Ors., AIR 1971 SC 733, Union of India Ors. v. M/s. Bhimsen Walaiti Ram, AIR 1971 SC 2295; State of Orissa Ors. v. Harinarayan Jaiswal Ors., AIR 1972 SC 1816; State of U.P. Ors. v. Vijay Bahadur Singh Ors., AIR 1982 SC 1234; and Laxmikant Ors. v. Satyawan Ors., AIR 1996 SC 2052). 12. While dealing with the approval of an award under the Land Acquisition Act, this Court in Vijayadevi Navalkishore Bhartia (supra) held : In the context of an administrative act, the word approval does not mean anything more than either confirming, ratifying, assenting, sanctioning or consenting. This is only an administrative power which limits the jurisdiction of the authority to apply its mind to see whether the proposed award is acceptable to the Government or not. 13. Therefore, it is evident from the aforesaid settled legal proposition that the resolution passed by the Society cannot be given effect to unless approval is accorded by the Registrar as mandatorily required by the Act 1972 and the Rules. 14. The Legislature in its wisdom has not enacted any deeming provision providing that in case the resolution is not considered and finally decided by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is binding for the reason that there is a desire to secure uniformity and certainty in law. Thus, in judicial administration precedents which enunciate rules of law form the foundation of the administration of justice under our system. Therefore, it has always been insisted that the decision of a coordinate bench must be followed. (Vide : Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel Ors., AIR 1968 SC 372; Sub-Committee of Judicial Accountability v. Union of India Ors., (1992) 4 SCC 97; and State of Tripura v. Tripura Bar Association Ors., (1998) 5 SCC 637). 19. In Rajasthan Public Service Commission Anr. v. Harish Kumar Purohit Ors., (2003) 5 SCC 480, this Court held that a bench must follow the decision of a coordinate bench and take the same view as has been taken earlier. The earlier decision of the coordinate bench is binding upon any latter coordinate bench deciding the same or similar issues. If the latter bench wants to take a different view than that taken by the earlier bench, the proper course is for it to refer the matter to a larger bench. 20. In the instant case, the position before us is worse as the latter bench has taken a divergent vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at no valid demand had ever been made by the Society and affairs of the Society were totally mismanaged by one Shri C.D. Garg, who had no competence to deal with the working of the Society. After appreciating the evidence on record the Registrar recorded the following findings : (i) Affairs of the Society were mis-managed by Shri C.D. Garg who was father of the Secretary of the Society and had no authority to function on behalf of the Society; (ii) There was no development in the Society in spite of large turnover of members; (iii) New members had been enrolled before grant of any approval of expulsion by the Registrar; (iv) No construction had been started and there was no progress in the work and thus no demand could have been made from the members of the Society; (v) Affairs of the Society required to be enquired into; and (vi) According approval of expulsion to the members would amount to encouraging the mal-practices in the Society. 25. While considering the revision filed by the Society under Section 80 of the Act 1972, the Financial Commissioner in his judgment and order dated 26-8-1997 concurred with the reasoning given by the Registrar and the revisional au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. [Vide : State of Orissa v. Dhaniram Luhar - AIR 2004 SC 1794; State of Rajasthan v. Sohan Lal Ors. - (2004) 5 SCC 573; Vishnu Dev Sharma v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Stock Exchange Limited, (2008) 14 SCC 171 = 2008 (230) E.L.T. 385 (S.C.) = 2010 (18) S.T.R. 84 (S.C.) In view of the above, we are of the considered opinion that facts of the case did not warrant any interference by the High Court in its equity jurisdiction for raising the writ of certiorari. 30. In view of the facts and circumstances of the case and the manner in which the impugned judgment has been passed, appeal deserves to be allowed. 31. Be that as it may, we have been informed by learned counsel for the parties that the Society has been taken over by the Administrator and a large number of flats remained un-allotted. The appellants have filed the information sought by them under the Right to Information Act, 2005 on 23-4-2008 which makes it clear that 15 flats bearing Nos. 14, 23, 217, 324, 325, 327, 418, 421, 426, 513, 516, 619, 623 and 726 category- B and 737 category- A remained un-allotted. In order to meet the ends of justice it is required that appellants be adjusted against the said un-allotted flats. However, the Society shall put a demand, if any, and the appellants are directed to make the payment with interest in accordance with law. 32. In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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