Case: Jagdish Singh Vs. Lt. Governor Delhi

membership of the person concerned is in relation to the Society pertaining to which disqualifications are incurred. A plain reading of Rule 28 makes it crystal clear that the Registrar when becomes aware of the fact that an individual has become a member of two Co-operative Societies of the same class which obviously is a disqualification under Rule 25 then he has the discretion to direct removal of the said individual from the membership of either or both the Co-operative Societies. If Sub-rule (2) of Rule 25 is interpreted to mean that deemed cessation of the person concerned from membership of both the Societies then the question of discretion of the Registrar under Rule 28 will not arise. If the interpretation given by the Registrar to Sub-rule (2) of Rule 25 as well as the contention raised by the learned Counsel for the respondents is sustained then the said sub-rule will be at loggerhead with Rule 28. On the other hand, if Sub-rule (2) is interpreted to mean that the deemed cessation is in relation to the Society in respect of which the person concerned incurs the disqualification then both Sub-rule (2) as well as Rule 28 would have its play. Rule 28 in our considered opinion cannot be held to be otiose and must be allowed to have its full play. In this view of the matter the only way by which Sub-rule (2) of Rule 25 and Rule 28 can be harmoniously construed is to construe Sub-rule (2) to Rule 25 to mean that the deemed cessation of the person concerned from the membership of the Society, is the Society in respect of which the disqualification was incurred. In the case in hand the disqualification which the appellant incurred was in respect of his membership of the Tribal Co-operative Housing Society Ltd. as he could not have become a member of the said Society as he was already a member of Dronacharaya Co-operative Group Housing Society, and therefore, by operation of Sub-rule (2) he would deem to have ceased to be a member from the Tribal Co-operative Housing Society right from the inception in November, 1983 and not from the Dronacharaya Co-operative Group Housing Society. 7. Apart from the aforesaid harmonious construction of Sub-rule (2) of Rule 25 and Rule 28, on a plain construction of Rule 25 also the same conclusion has to be arrived at. Sub-rule (1) disqualifies a person for admission as a member of a Housing Society if he or his spouse or any of his dependent children is a member of any other Housing Society. The disqualification in question obviously attaches to membership of the second Society and has no connection with his membership of the first Society. In view of the aforesaid embargo contained in Sub-rule (1) of Rule 25, Sub-rule (2) by its operation bring in the fiction of deemed cessation from the membership of such Society from the date when the disqualification was incurred and such fiction of deemed cessation has nothing to do with the membership of the first Society. This being the position, Sub-rule (2) of Rule 25 when read with Sub-rule (1) of the said Rule is not susceptible of a construction that the person concerned ceased to be a member of both the Societies. In view of our aforesaid construction of Sub-rule (2) of Rule 25, .the conclusion is irresistible that the Registrar while passing the impugned order dated 23rd February, 1993 and Lt. Governor while dismissing the appellants Revision by his order dated 25th August, 1993 as well as the High Court in the impugned judgment dated 20th March, 1996 committed gross error in holding that the appellant ceases to be a member of both the Societies under Sub-rule (2) of Rule 25. The aforesaid orders, therefore, are wholly unsustainable and cannot be sustained. 8. At this stage, it would be appropriate to deal with the contention of the learned Counsel for the respondents that since the Registrar had the power under Rule 28 to direct removal of membership from either of the Societies or the both the impugned order passed by the Registrar may be construed to be one under Rule 28. Though prima facie the aforesaid contention may be attractive but it does not sustain a deeper scrutiny. In the case in hand a notice to show cause was issued by the Registrar in exercise of power under Sub-rule (4) of Rule 25 indicating that on account of the disqualification of the appellant incurred under Rule 25(1)(c)(iii) he has ceased to be a member of both the Societies under Sub-rule (2) of Rule 25. The Registrar while issuing notice or while passing the impugned order has not chosen to exercise his discretion conferred under Rule 28 of the Rules. When a power has been conferred upon the Registrar under Rule 28 to decide as to whether he would direct cancellation of the membership of the person concerned from anyone of the two Societies or the both when it comes to his knowledge that a person has become a member of two of the Co-operative Societies, then a corresponding duty is cast upon him to examine the circumstances under which the person concerned has become member of two Societies and to take a conscious decision in the matter of exercise of his discretion. The discretion in question obviously has to be judiciously exercised and not arbitrarily, depending upon the facts and circumstances of each case. That being the position, it is difficult to accept the contention of the learned Counsel for the respondent that the impugned direction of the Registrar could be treated as one under Rule 28 when on the face of it we find that the Registrar has not chosen to exercise his power under Rule 28 nor has he taken all relevant materials into consideration in exercising his discretion, one way or the other. On the other hand he has chosen to exercise his power under Sub-rule (4) of Rule 25.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. Apart from the aforesaid harmonious construction of(2) of Rule 25 and Rule 28, on a plain construction of Rule 25 also the same conclusion has to be arrived at.(1) disqualifies a person for admission as a member of a Housing Society if he or his spouse or any of his dependent children is a member of any other Housing Society. The disqualification in question obviously attaches to membership of the second Society and has no connection with his membership of the first Society. In view of the aforesaid embargo contained in(1) of Rule 25,(2) by its operation bring in the fiction of deemed cessation from the membership of such Society from the date when the disqualification was incurred and such fiction of deemed cessation has nothing to do with the membership of the first Society. This being the position,(2) of Rule 25 when read with(1) of the said Rule is not susceptible of a construction that the person concerned ceased to be a member of both the Societies. In view of our aforesaid construction of(2) of Rule 25, .the conclusion is irresistible that the Registrar while passing the impugned order dated 23rd February, 1993 and Lt. Governor while dismissing the appellants Revision by his order dated 25th August, 1993 as well as the High Court in the impugned judgment dated 20th March, 1996 committed gross error in holding that the appellant ceases to be a member of both the Societies under(2) of Rule 25. The aforesaid orders, therefore, are wholly unsustainable and cannot be sustained.