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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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