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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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