TMI Blog1991 (8) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Leav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rehabilitation 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 membership 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 provide 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsequently 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/Minister of State of Rehabilitation Ministry. List 'C' on the other hand contained the names of such persons who were employees in the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers 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 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' includin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 alternative, 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 August, 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 Society against the order of the Registrar refusing to regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a member, for otherwise the purpose of the order Was bound to be frustrated 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 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, strenuously 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 notification was issued does not authorise the issue of a notification 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 Gaz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 construction which deprives certain existing words of all meaning, it is permissible to supply the words (Craies Statute Law, 7th e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of and permissible under Section 88 of the Act, Secondly, keeping in view the facts of the instant case and the purpose 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 unreasonableness. A bye-law so made ought to be supported unless it is manifestly partial and unequal in its operation between 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 position the notification dated 27th October, 1987 deserves to be upheld as, in our opinion, it d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist '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. 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 surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have followed from or accompanied it and that when the statute says that you must imagine a certain state of affair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 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 anticipate 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 section 1(2) of the Principal Act it was the amended Act which was brought into operation in Pondicherry. The result was that the Pondicherry 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 legislation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s being the true nature of the notification dated 27th October, 1987, the Lt. Governor cannot be said to have in any manner reviewed 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, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antive 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 notification 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 notification dated 29th August, 1990 was issued. The notification 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 enforceable in law, the said right cannot be taken away by a subsequent order under general power of rescindment available to the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X
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