REPORTABLE  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9439 OF 2003

Sant Lal Gupta & Ors.                                 …Appellants

Versus

Modern Co-operative Group Housing Society Ltd. and Ors.          …Respondents

         J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been filed against the judgment and order dated  

4.9.2002 passed by the Delhi High Court in Civil Writ Petition No.  

2/98 by which the High Court has set aside the judgment and order of  

the  Financial  Commissioner  dated  3.11.1997  passed  in  Case

No.234/97-CA, and also the judgment and order of the Registrar of  

the Co-operative Societies dated 26.8.1997.  

2. Facts and circumstances giving rise to this appeal are that the  

appellants  had  been  the  members  of  the  Modern  Co-op.  Group  

Housing Society Ltd. (hereinafter called the ‘Society’) and claimed to  

have paid all their subscriptions of  membership and other dues on the  

demands  made  by  the  Society.  The  Society  had  proposed  the  

expulsion of 27 members including the appellants, by its Resolution  

dated 27.4.1987 and the said proposal was sent to the Registrar of the  

Co-operative Societies  (hereinafter  called the Registrar)  as required  

under the provisions of the Delhi Co-operative Societies  Act,  1972  

(hereinafter  called  as  ‘Act  1972’),  for  approval  on  20.2.1988  and  

meanwhile it enrolled new members, whose approval was also sought.  

In spite of all efforts made by the Registrar, the Society did not submit  

the record before him prior  to 19.9.1995. The Registrar  vide order  

dated 2.2.1996 issued notice to the Society for consideration of the  

said resolution and vide order dated 4.6.1996 rejected the approval.  

3. Being  aggrieved,  the  Society  approached  the  Financial  

Commissioner by filing a revision under Section 80 of the Act 1972  

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which was also dismissed vide judgment and order dated 30.7.1996.  

Being aggrieved, the Society filed Writ Petition No.3325/1996 before  

the  Delhi  High  Court  and  after  hearing  the  same,  the  matter  was  

remanded  to  the  Registrar  for  reconsideration.  In  pursuance  of  the  

order  of the Delhi  High Court,  the Registrar  considered the matter  

afresh and passed an order dated 26.8.1997 rejecting the approval of  

the expulsion of the appellants and other members. Being aggrieved,  

the Society preferred a revision before the Financial  Commissioner  

which was also dismissed vide order dated 3.11.1997.   

4. The Society  challenged  the  aforesaid  orders  of  the  Financial  

Commissioner  as  well  as  of  the  Registrar  by  filing  Writ  Petition  

before the Delhi High Court which has been allowed.  Hence,  this  

appeal.  

5. Shri  D.N.  Goburdhan,  learned  counsel  appearing  for  the  

appellants has submitted that the High Court has mis-directed itself  

and did not decide the core issue involved in the case. The High Court  

has  held  that  in  case  the  resolution  sent  by  the  Society  is  not  

considered and decided finally by the Registrar within a period of 6  

months as required under Rule 36(3) of the Rules 1973, it  will  be  

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deemed to  have  been  approved,  though,  there  is  no  such  deeming  

provision under the Act 1972. The High Court further committed an  

error  extending the period of  6 months to 1 year  re-legislating  the  

statutory provision.   More so,  there is  no reference to the findings  

recorded by the Financial Commissioner  and the Registrar in their  

impugned orders and no reasons have been recorded to set aside the  

same. Thus, appeal deserves to be allowed.  

6. On the contrary, Shri M.C. Dhingra, learned counsel appearing  

for the Society, has vehemently opposed the appeal contending that  

the appellants  had been defaulters  and in spite  of  several  demands  

made by the Society they did not pay the amount. Their expulsion was  

strictly  in consonance with the Delhi  Co-operative Societies  Rules,  

1973 (hereinafter called the Rules). No fault can be found with the  

judgment and order of the High Court. The appeal lacks merit and is  

liable to the dismissed.  

7. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.  

8. Rule 36(3) of the Rules reads as under:

“36. Procedure for expulsion of members-  

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           (1)      xx             xx              xx          xx            (2)      xx             xx              xx          xx

(3) When a resolution passed in accordance with   sub-rule  (1)  or  (2)  is  sent  to  the  Registrar  or  otherwise brought to his notice, the Registrar may  consider  the  resolution  and  after  making  such  enquiry  as  to  whether  full  and final  opportunity   has been given under sub-rule (1) or (2) give his   approval and communicate the same to the society   and the member concerned  within a period of 6  months. The resolution shall be effective from the  date of approval.” (Emphasis added).

9. It  is  evident  from the aforesaid provision that  the legislature  

desired that every such resolution sent to the Registrar by the Society  

be considered and decided within a period of 6 months and that the  

resolution shall be effective from the date of approval.  If approval is  

required, the order which is required to be approved by the statutory  

authority cannot become effective unless the approval is accorded.  

10. Approval means confirming, ratifying, assenting, sanctioning or  

consenting  to  some act  or  thing  done  by  another.  The very  act  of  

approval means,  the act of passing judgment, the use of discretion,  

and determining as an adjudication therefrom unless limited by the  

context of the Statute.  (Vide:  Vijayadevi Navalkishore Bhartia &  

Anr. v. Land Acquisition Officer & Anr., (2003) 5 SCC 83).  

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11. There can be no quarrel with the settled legal proposition that if  

a statute provides for the approval of the higher Authority, the order  

cannot be given effect to unless it is approved and the same remains  

inconsequential and unenforceable. (Vide:  Trilochan Mishra etc. v.  

State of Orissa & Ors., AIR 1971 SC 733; Union of India & Ors. v.  

M/s Bhimsen Walaiti Ram, AIR 1971 SC 2295; State of Orissa &  

Ors. v. Harinarayan Jaiswal & Ors., AIR 1972 SC 1816;  State of  

U.P. & Ors. v. Vijay Bahadur Singh & Ors., AIR 1982 SC 1234;   

and Laxmikant & Ors. v. Satyawan & Ors., AIR 1996 SC 2052).   

12. While dealing with the approval of an award under the Land  

Acquisition  Act,  this  Court  in  Vijayadevi  Navalkishore  Bhartia  

(supra) held:  

  “In  the  context  of  an  administrative  act,  the   word  ‘approval’  does  not  mean  anything  more  than  either  confirming,  ratifying,  assenting,   sanctioning  or  consenting.  This  is  only  an  administrative power which limits the jurisdiction   of the authority to apply its mind to see whether   the  proposed  award  is  acceptable  to  the  Government or not.”  

13. Therefore,  it  is  evident  from  the  aforesaid  settled  legal  

proposition that the resolution passed by the Society cannot be given  

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effect to unless approval is accorded by the Registrar as mandatorily  

required by the Act 1972 and the Rules.  

14. The  Legislature  in  its  wisdom has  not  enacted  any  deeming  

provision providing that in case the resolution is not considered and  

finally decided by the Registrar  within a period of six months,  the  

resolution shall  become effective and operative.  It is the exclusive  

prerogative of the Legislature to create a legal fiction meaning thereby  

to  enact  a  deeming  provision  for  the  purpose  of  assuming  the  

existence of a fact which does not really exist. Even if a legal fiction  

is  created  by  the  Legislature,  the  court  has  to  ascertain  for  what  

purpose the fiction is created, and it must be limited to the purpose  

indicated by the context and cannot be given a larger effect. More so,  

what can be deemed to exist under a legal fiction are merely facts and  

no legal consequences which do not flow from the law as it stands. It  

is a settled legal proposition that in absence of any statutory provision,  

the provision cannot be construed as to provide for a fiction in such an  

eventuality. More so, creating a fiction by judicial interpretation may  

amount to  legislation,  a field exclusively  within the  domain  of  the  

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legislature.  (Vide:  Ajaib Singh v. Sirhind Coop. Marketing-cum-

processing Service Society Ltd. & Ors., (1999) 6 SCC 82).  

15. In  Union of India & Anr. v. Deoki Nandan Aggarwal, AIR  

1992 SC 96, this Court observed as under:

  “It is not the duty of the Court either to enlarge   the scope of the legislation or the intention of the  legislature when the language of the provision is   plain and unambiguous. The Court cannot rewrite,   recast or reframe the legislation for the very good   reason that it has no power to legislate. The power   to legislate has not been conferred on the Court.”

This Court explained the distinction between the `deeming provisions’  

and ‘presumption’ and held that the distinction is well discernible.  

16. Be that as it may, the High Court has referred to its Division  

Bench  judgment  in  B.B.  Chibber  v.  Anand  Lok  Co-operative  

Group Housing Society Ltd. & Ors., 90 (2001) DLT 652, wherein  

the same provision has been considered and it had categorically been  

held that deeming approval was not legally permissible.  

17. In view of the above, it was neither desirable nor permissible by  

the Co-ordinate  Bench to disapprove the earlier  judgment and take  

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view contrary to it. More so, extension of the period from 6 months to  

1 year amounts to legislation.  

18. A  coordinate  bench  cannot  comment  upon  the  discretion  

exercised or judgment rendered by another coordinate bench of the  

same court. The rule of precedent is binding for the reason that there  

is a desire to secure uniformity and certainty in law. Thus, in judicial  

administration  precedents  which  enunciate  rules  of  law  form  the  

foundation  of  the  administration  of  justice  under  our  system.  

Therefore, it has always been insisted that the decision of a coordinate  

bench must be followed. (Vide:  Tribhovandas  Purshottamdas  

Thakkar v. Ratilal Motilal Patel & Ors., AIR 1968 SC 372;  Sub-

Committee of Judicial Accountability v. Union of India & Ors.,  

(1992) 4 SCC 97; and State of Tripura v. Tripura Bar Association  

& Ors., (1998) 5 SCC 637).

19. In  Rajasthan Public Service Commission & Anr. v. Harish  

Kumar Purohit & Ors., (2003) 5 SCC 480, this Court held that a  

bench must follow the decision of a coordinate bench and take the  

same view as has been taken earlier.    The earlier  decision of  the  

coordinate bench is binding upon any latter coordinate bench deciding  

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the same or similar issues.  If the latter bench wants to take a different  

view than that taken by the earlier bench, the proper course is for it to  

refer the matter to a larger bench.   

20. In the instant case, the position before us is worse as the latter  

bench has taken a divergent view from an earlier coordinate bench,  

particularly  taking  note  of  the  earlier  decision  holding  otherwise,  

without explaining why it could not follow the said precedent even  

while extensively quoting the same. Judicial propriety and discipline  

are not served by such conduct on the part of the division bench.    

21. Thus, in view of the above, it was not permissible for the High  

Court  to  take  the  course  which  it  has  adopted  and  such  a  course  

cannot be approved.  

22. The High Court had found fault with the orders of the Registrar  

and the Financial Commissioner basically on the grounds of delay and  

laches  without  realising  that  the  writ  petition  was  not  against  the  

orders passed by the Registrar after inordinate delay of 7 years.  That  

had been the subject matter of the earlier writ petition No. 3325/1996  

filed by the Society and the High Court was dealing with subsequent  

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orders  which  had  been  passed  by  those  authorities  after  remand.  

Therefore, there was no occasion for the High Court to go into those  

issues and leaving the core issue undecided.  In fact the High Court  

has made an attempt to review its earlier  order as it  dealt  with the  

issues involved in the earlier writ petition No.3325/1996. The High  

Court failed to appreciate that it was not dealing with a review petition  

as it had reviewed its earlier judgment indirectly.  

23.  It is a settled proposition of law that what cannot be done  directly,  

is not permissible to be done obliquely, meaning thereby, whatever  

is prohibited by law to be done, cannot legally be effected by an  

indirect  and  circuitous  contrivance  on  the  principle  of  “quando  

aliquid  prohibetur,  prohibetur  et  omne  per  quod  devenitur  ad   

illud.” An authority cannot be permitted to evade a law by “shift or  

contrivance”.  (See:  Jagir Singh v. Ranbir Singh & Anr., AIR  

1979 SC 381; and M.C. Mehta v. Kamal Nath & Ors., AIR 2000  

SC 1997).  

24. The Registrar after remand considered the matter and vide order  

dated 26.8.1997 disposed of the same dealing with the question of the  

expulsion of the appellants  and others.  The case was decided after  

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giving full opportunity of hearing to all the parties concerned.  The  

contention  of  the  Society  has  been  that  in  spite  of  sufficient  

opportunities the proposed expelled members did not pay the dues,  

and therefore, the Society was justified in passing the resolution for  

their expulsion. The appellants had contended that no valid demand  

had ever been made by the Society and affairs of the Society were  

totally mismanaged by one Shri C.D.  Garg, who had no competence  

to  deal  with  the  working  of  the  Society.  After  appreciating  the  

evidence on record the Registrar recorded the following findings:

(i) Affairs of the Society were mis-managed by Shri  C.D.  

Garg who was father of the Secretary of the Society and  

had no authority to function on behalf of the Society;

(ii) There was no development in the Society in spite of large  

turnover of members;  

(iii) New  members  had  been  enrolled  before  grant  of  any  

approval of expulsion by the Registrar;

(iv) No  construction  had  been  started  and  there  was  no  

progress  in  the  work  and  thus  no  demand  could  have  

been made from the members of the Society;

(v) Affairs of the Society required to be enquired into; and  

(vi) According approval of expulsion to the members would  

amount to encouraging the mal-practices in the Society.  

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25. While  considering  the  revision  filed  by  the  Society  under  

Section  80  of  the  Act  1972,  the  Financial  Commissioner  in  his  

judgment  and  order  dated  26.8.1997  concurred  with  the  reasoning  

given  by the  Registrar  and the  revisional  authority,  and had given  

cogent reasons for such agreement.   

26. The High Court has dealt with the case without meeting any of  

the  reasons  given  by  the  Registrar  and  unnecessarily  laboured  in  

digging the old fossils that the Registrar failed to decide the case for  

long 8 years and in such a fact-situation he would become functus-

officio, without appreciating that if the Society was so aggrieved by  

inaction of the Registrar, it could have approached the High Court to  

issue a direction to the Registrar to decide the case within a stipulated  

period. It is not to be forgotten that there could be many reasons and  

circumstances  to  account  for  the  resolution  not  having  been  

considered within the stipulated time. In such cases delay may be for  

reasons on the part of the applicant himself. The statutory authorities  

must be allowed to exercise their powers reasonably and in good faith.  

 In  the  instant  case,  the  Resolution  dated  27.4.1987  was  

forwarded  by  the  Society  to  the  Registrar  for  approval  after  an  

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inordinate delay on 20.2.1988. The High Court in paragraph 13 of the  

impugned judgment itself has taken note that “several opportunities  

were  given  to  the  Society  which  finally  submitted  the  records  on  

19.9.1995.”  Thus, delay was totally attributable to the Society itself.  

27. So  far  as  the  issue  of  the  expulsion  of  the  members  of  the  

Society is concerned, the High Court has not recorded any finding of  

fact as to when the demands had been made from the members and as  

to whether  there was any progress  in the construction work of  the  

Society. We have been taken through the entire judgment of the High  

Court.  We cannot  find any single  iota  which  may  be  termed  as  a  

reason for the judgment and we are at a complete loss and could not  

find out as what the High Court has decided.  

28. It is a settled legal proposition that not only administrative but  

also judicial order must be supported by reasons, recorded in it.  Thus,  

while deciding an issue, the Court is  bound to give reasons for its  

conclusion.  It is the duty and obligation on the part of the Court to  

record reasons while disposing of the case.  The hallmark of order and  

exercise  of  judicial  power  by  a  judicial  forum is  for  the  forum to  

disclose its reasons by itself and giving of reasons has always been  

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insisted upon as one of the fundamentals of sound administration of  

the justice – delivery system, to make it known that there had been  

proper and due application of mind to the issue before the Court and  

also as an essential requisite of the principles of natural justice. “The  

giving of reasons for a decision is an essential attribute of judicial   

and judicious disposal of a matter before Courts, and which is the   

only  indication  to  know about  the  manner  and quality  of  exercise   

undertaken,  as  also  the  fact  that  the  Court  concerned  had  really   

applied its mind.” The reason is the heartbeat of every conclusion.  It  

introduces clarity in an order and without the same, the order becomes  

lifeless. Reasons substitute subjectivity with objectivity.  The absence  

of  reasons  renders  an  order  indefensible/unsustainable  particularly  

when the order is subject to further challenge before a higher forum.  

Recording of reasons is principle of natural justice and every judicial  

order must be supported by reasons recorded in writing.  It ensures  

transparency  and fairness  in  decision  making.   The  person  who is  

adversely affected must know why his application has been rejected.  

[Vide:  State  of  Orissa  v.  Dhaniram Luhar AIR  2004  SC 1794;  

State of Rajasthan v. Sohan Lal & Ors. (2004) 5 SCC 573;  Vishnu  

Dev Sharma v. State of Uttar Pradesh & Ors.  (2008) 3 SCC 172;  

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Steel  Authority  of  India  Ltd.  v.  Sales  Tax  Officer,  Rourkela  I  

Circle & Ors.  (2008) 9 SCC 407;  State of Uttaranchal & Anr. v.  

Sunil  Kumar  Singh  Negi AIR  2008  SC  2026;  U.P.S.R.T.C.  v.  

Jagdish Prasad Gupta AIR 2009 SC 2328;  Ram Phal v. State of  

Haryana & Ors. (2009) 3 SCC 258; State of Himachal Pradesh v.  

Sada  Ram  &  Anr. (2009)  4  SCC  422;  and  The  Secretary  &  

Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik  

Samity & Ors., AIR 2010 SC 1285).  

29. The High court ought to have considered that it was a writ of  

certiorari and it was not dealing with an appeal. The writ of certiorari  

under Article 226 of the Constitution can be issued only when there is  

a failure of justice and it cannot be issued merely because it may be  

legally permissible to do so. There must be an error apparent on the  

face of record as the High Court acts merely in a supervisory capacity.  

An error  apparent  on the face of  the record means  an error  which  

strikes one on mere looking and does not need long drawn out process  

of reasoning on points where there may conceivably be two opinions.  

Such  error  should  not  require  any  extraneous  matter  to  show  its  

incorrectness. Such errors may include the giving of reasons that are  

bad in law or inconsistent, unintelligible or inadequate.  It may also  

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include the application of a wrong legal test to the facts found, taking  

irrelevant  considerations  into  account  and  failing  to  take  relevant  

considerations into account, and wrongful admission or exclusion of  

evidence, as well as arriving at a conclusion without any supporting  

evidence.  Such  a  writ  can  be  issued  when  there  is  an  error   in  

jurisdiction  or  authority  whose  order  is  to  be  reviewed  has  acted  

without jurisdiction or in excess of its jurisdiction or has failed to act.  

While issuing the Writ of Certiorari, the order under challenge should  

not undergo scrutiny of an appellate court.  It is obligatory on the part  

of the petitioner to show that a jurisdictional error has been committed  

by the Statutory Authorities. There must be the breach of principles of  

natural justice for resorting to such a course. (Vide:  Harbans Lal v.  

Jagmohan Saran, AIR 1986 SC 302; Municipal Council, Sujanpur  

v.  Surinder  Kumar,  (2006)  5  SCC 173;  Sarabjit  Rick  Singh  v.  

Union of India,  (2008) 2 SCC 417; and  Assistant Commissioner,  

Income  Tax,  Rajkot  v.  Saurashtra  Kutch  Stock  Exchange  

Limited, (2008) 14 SCC 171)

In view of the above, we are of the considered opinion that facts  

of the case did not warrant any interference by the High Court in its  

equity jurisdiction for raising the writ of certiorari.  

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30. In  view  of  the  facts  and  circumstances  of  the  case  and  the  

manner  in  which  the  impugned judgment  has  been  passed,  appeal  

deserves to be allowed.  

31. Be that as it may, we have been informed by learned counsel  

for  the  parties  that  the  Society  has  been  taken  over  by  the  

Administrator and a large number of flats remained un-allotted. The  

appellants have filed the information sought by them under the Right  

to Information Act, 2005 on 23.4.2008 which makes it clear that 15  

flats bearing Nos. 14, 23, 217, 324, 325, 327, 418, 421, 426, 513, 516,  

619, 623 and 726 category-‘B’ and 737 category-‘A’ remained un-

allotted.  In  order  to  meet  the  ends  of  justice  it  is  required  that  

appellants be adjusted against the said un-allotted flats. However, the  

Society shall put a demand, if any, and the appellants are directed to  

make the payment with interest in accordance with law.  

32. In view of the above, appeal is allowed.  Judgment and order of  

the  High  Court  dated  4.9.2002  in  Civil  Writ  Petition  No.  2/98  is  

hereby  set  aside  and  the  judgment  and  order  of  the  statutory  

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authorities dated 26.8.1997 and 3.11.1997 are restored. There shall be  

no order as to costs.      

                        ………………………J.             (P. SATHASIVAM)

          ………………………..J.            (Dr. B.S. CHAUHAN)

New Delhi, October 18, 2010

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