# SATISH CHANDRA v. REGISTRAR OF COOPERATIVE SOCIETIES, DELHI

- **Citation:** [1994] 3 S.C.R. 618
- **Court:** Supreme Court of India
- **Decided:** 1994-04-21
- **Bench:** K. Ramaswamy, N. Venkatachala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/satish-chandra-v-registrar-of-cooperative-societies-delhi-12140
- **Pages:** 7

## Headnote

Code of Civil Procedure, 1908 : S.11--Constructive res judicata-Expulsion of members from cooperative housing society--fleld, omission to
challenge the resolution of expulsion in writ petition before High Court
C operates as constructive res judicata-Writ petition under Art. 32 thereafter not
maintainable-De/hi Cooperative Housing Societies Act 1972.
Constitution of India-Articles 32 & 22(r-Maintainability of Writ Petition-Held, memhership of cooperative society is a right under a statute and
not a fundamental right-Supreme Court does not encourage bypassing
D statutory remedy or remedy under Article 226-De/hi Cooperative Housing
Societies Act 1972, Ss. 34 and 32.
Delhi Cooperative Housing Societies Act 1972-Sections 34 and
32-Resolution of expulsion from society not challenged before High
Court-constitutionality of Section 34 upheld by High Court, and not agrued
E in Supreme Court-Hence not considered-Constitution of India, Articles 226
and 136.
By resolution dated 22 February, 1990 passed by the general body
of a Housing
Society the petitioners were expelled from its memberF
ship. The petitioners did not challenge their expulsion but the appointment of architect; the residential qualification for membership; the
draw of lots; for appointment of an Administrator and consequential
reliefs.
In a related appeal under Article 136, they challenged the conG stitutionality of Section 34 of the Delhi Cooperative House Societies Act
1972, and for appointment of an Administrator of the RespondentSociety under Section 32 of the Act.
The litigation had gone through two stages of writ petition in the
H High Court, and one in this court under Article 32. A writ petition filed by
618
•
S. CHANDRA v. CO-OP. SOCIETIES
619
~'
the members of the respondent-Society had also been dismissed by a A
3-judge bench of this court.
Dismissing the petitions, thi• court
HELD : 1. The right to membership of a cooperative society is a right
B
under a statute and not a fundamental right. If the petitioners have been
..
~
removed otherwise than in accordance with law, they have to pursue the
remedy as provided under the Act. This court does not encourage the filing
of the writ petition under Article 32, bypassing the statutory remedy and
the remedy of Article 226. [622-B-C]
c
Raj Rani v. Delhi Administration, AIR (1977) SC 1980, distinguished
and Tilokchand Motichand v. H.B. Munshi, CST, AIR (1970) SC 898,
referred to.
2. The petitioners might and ought to have raised the legality of their D
expulsion from membership of the society. The omission to raise it in the
•
writ petition before the High Court operates as constructive res judicata to
•
maintain the writ petition under Art. 32. [622-F-G]
3. Despite the willingness of the High Court to direct the respondentE
...
Society to withdraw the expulsion resolution subject to the petitioners
paying the arrears with interest thereon, they had not availed of the court's
indulgence. [622-A-BJ
4. The petitioners not having challenged the order of expulsion
passed by the general body and approved by the Registrar, it was not F
necessary for the High Court to go into the question of expulsion.
[623-D-E)
5. In view of the fact that no arguments had been addi-essed before
this court on the question of the validity of Section 34 6r the refusal to
pass an order under Section 32 of the Act for appointment of an ad- G
ministrator, it is not necessary to go into those question. [623-F-G)
~
6. The petitioners may make a representation to the society regard-
'
ing refund of the amount they have deposited, which may be disposed of
in accordance with law. (624-A-B)
H
620
SUPREME COURT REPORTS
[1994] 3 S.C.R.
A

## Text

A
SATISH CHANDRA
v.
REGISTRAR OF COOPERATIVE SOCIETIES, DELHI.
APRIL 21, 1994
B
[K. RAMASWAMY AND N. VENKATACHALA, JJ.]
Code of Civil Procedure, 1908 : S.11--Constructive res judicata-Expulsion of members from cooperative housing society--fleld, omission to
challenge the resolution of expulsion in writ petition before High Court
C operates as constructive res judicata-Writ petition under Art. 32 thereafter not
maintainable-De/hi Cooperative Housing Societies Act 1972.
Constitution of India-Articles 32 & 22(r-Maintainability of Writ Petition-Held, memhership of cooperative society is a right under a statute and
not a fundamental right-Supreme Court does not encourage bypassing
D statutory remedy or remedy under Article 226-De/hi Cooperative Housing
Societies Act 1972, Ss. 34 and 32.
Delhi Cooperative Housing Societies Act 1972-Sections 34 and
32-Resolution of expulsion from society not challenged before High
Court-constitutionality of Section 34 upheld by High Court, and not agrued
E in Supreme Court-Hence not considered-Constitution of India, Articles 226
and 136.
By resolution dated 22 February, 1990 passed by the general body
of a Housing
Society the petitioners were expelled from its memberF
ship. The petitioners did not challenge their expulsion but the appointment of architect; the residential qualification for membership; the
draw of lots; for appointment of an Administrator and consequential
reliefs.
In a related appeal under Article 136, they challenged the conG stitutionality of Section 34 of the Delhi Cooperative House Societies Act
1972, and for appointment of an Administrator of the RespondentSociety under Section 32 of the Act.
The litigation had gone through two stages of writ petition in the
H High Court, and one in this court under Article 32. A writ petition filed by
618
•
S. CHANDRA v. CO-OP. SOCIETIES
619
~'
the members of the respondent-Society had also been dismissed by a A
3-judge bench of this court.
Dismissing the petitions, thi• court
HELD : 1. The right to membership of a cooperative society is a right
B
under a statute and not a fundamental right. If the petitioners have been
..
~
removed otherwise than in accordance with law, they have to pursue the
remedy as provided under the Act. This court does not encourage the filing
of the writ petition under Article 32, bypassing the statutory remedy and
the remedy of Article 226. [622-B-C]
c
Raj Rani v. Delhi Administration, AIR (1977) SC 1980, distinguished
and Tilokchand Motichand v. H.B. Munshi, CST, AIR (1970) SC 898,
referred to.
2. The petitioners might and ought to have raised the legality of their D
expulsion from membership of the society. The omission to raise it in the
•
writ petition before the High Court operates as constructive res judicata to
•
maintain the writ petition under Art. 32. [622-F-G]
3. Despite the willingness of the High Court to direct the respondentE
...
Society to withdraw the expulsion resolution subject to the petitioners
paying the arrears with interest thereon, they had not availed of the court's
indulgence. [622-A-BJ
4. The petitioners not having challenged the order of expulsion
passed by the general body and approved by the Registrar, it was not F
necessary for the High Court to go into the question of expulsion.
[623-D-E)
5. In view of the fact that no arguments had been addi-essed before
this court on the question of the validity of Section 34 6r the refusal to
pass an order under Section 32 of the Act for appointment of an ad- G
ministrator, it is not necessary to go into those question. [623-F-G)
~
6. The petitioners may make a representation to the society regard-
'
ing refund of the amount they have deposited, which may be disposed of
in accordance with law. (624-A-B)
H
620
SUPREME COURT REPORTS
[1994] 3 S.C.R.
A
CIVIL APPELLATE JURISDICTION : Special Leave petition (C)
No. 630 of 1994.
From the Judgment and Order dated 16.7.93 of the Delhi High Court
in C.W. No. 527 of 1990.
B
WITH
Writ Petition (c) No. 20 of 1994.
i- ..
(Under Article 32 of the Constitution of India).
c
Sarai Chandra and Satish Chandra in-person.
The following Order of the Court was delivered :
JN WRIT PETITION NO. 20/1994
D
The petitioners are the practising advocates. They were the members of the Supreme Cooperative Group Housing Society Ltd., 110,
Lawyers Chamber, Supreme Court Compound, New Delhi, for short 'the
•
Housing Society'. By a Resolution dated February 22, 1990 passed by the
•
general body of the Housing Society, the petitioners are expelled from
E
the membership of that society, that resolution is approved by the
Registrar or Ar.gust 12, 1991. This writ petition under Art. 32 of the
-
Constitution is, therefore, filed by the petitioners seeking the following
reliefs :
F
(a) to quash the said Resolution;
(b) to declare that the appointment of Architect as bad, arbitrary and
illegal;
(c) to declare the dispensation of residential qualification for memG bership of society as arbitrary and illegal;
(d) to declare the draw oflots dated April 14, 1990 and July 18, 1992
concerning Phase I and Phase II respectively as arbitrary and illegal;
( e) to appoint an Administrator forthwith and other consequential
.. ·<
H reliefs.
S. CHANDRA v. CO-OP. SOCIETIES
621
•'
When a question Was put to the counsel for the petitioners as to A
how the writ petition is maintainable, it was contended that the expulsion
was per se arbitrary and they are entitled to challenge on the ground of
violation of Art. 14. It was also contended that in similar circumstances,
this Court in Raj Rani & Ors. v. Delhi Admn. & Ors., AIR (1977) SC
1900 had considered elaborately the scheme of the Delhi Cooperative B
Societies Act 1972 for short 'the Act' and that, therefore, the petitioners
""'
~
are entitled lo seek the remedy. When a further question was put to the
petitioners that when they had sought for the above reliefs in the High
Court in a writ petition, but they were negatived and after it was negatived
and a S.L.P. No. 630/94 was filed in this court against the order of the c
Division Bench of the High Court, how the present writ petition is
maintainable, the counsel for the petitioner asserted that the order of the
High Court does not operate as res judicata since it was not a speaking
order and, therefore, the petitioners were entitled to seek the same reliefs
by filing the present writ petition.
D
-
We are afraid that we cannot accede to any of the contentions
raised by the petitioners. The petitioners filed Writ Petition No. 454 of
1989 in the High Court against the order of the Registrar under the Act
E
made .in respect of the arbitration proceedings initiated against the
appointment of the Architect by the General Body of the Society, which
came to be dismissed on April 7,' 1989. Without filing any special leave
petition under Art. 136, and suppressing the fact of dismissal of the above
writ petition the petitioners filed W.P. No. 58/89 in this Court under
Art.32 which this Court by order dated January 25, 1990 permitted the F
petitioners to withdraw the writ petition with liberty to pursue the remedy
by way of writ petition in the High Court. Then they filed Writ Petition
No.527/90 challenging the constitutional validity of s.34 of the Act and
also sought for mandamus to appoint Administrator under s.32 and also
challenging the appointment of Architect as illegal, the said Writ Petition G
was dismissed on July 16, 1993. While filing the special leave petition
against the said order, the petitioners filed the present writ petition. It
-+
may also be relevant to note that when other members of the Society
filed Writ Petition No. 561/90 etc. this Court comprised of a bench of
three Judges ultimately dismissed the above writ petition by order dated H
622
SUPREME COURT REPORTS
[1994] 3 S.C.R.
A
April 25, 1990.
-~
In the judgment, the Delhi High Court pointed out that despite the
willingness of the court to give direction to the society to withdraw the
expulsion, subject to the petitioners paying all the arrears with interest
B thereon, the petitioners had not availed of the indulgence, nor sought any
amendment to the writ petition to challenge their expulsion, apart from
non-availment of the statutory remedy. The conduct thus disentitle the
~ ..
petitioners of the remedy under Art. 32. That apart the right to membership of a Cooperative Society is a right got under a statute and not a
c fundamental right. If the petitioners have been removed otherwise than in
accordance with law, the petitioners have to pursue the remedy as provided
under the Act. This Court does not encourage the filing of the writ petition
under Art. 32, bypassing the statutory remedy and the remedy of Art. 226.
In Raj Rani's case, the question of maintainability of the writ petition under
D Art. 32 did not arise. That was the case where the writ petition was filed
in a representative capacity under Order 1 Rule 8 C.P.C. and since a policy
of the Act was involved therein, the writ petition was entertained to resolve
the controversy in accordance with law. Therefore, the ratio therein is of
little assistance to the petitioners. In Tilokchand Motichand & Ors. v. HS.
E
Munsh~ Commissioner of Sales Tax Bombay & Anr., AIR (1970) SC 898
relied on by the petitioners, far from assisting them, goes against them. This
Court had expressly held that when the remedy under Art. 226 was invoked. the legality thereof should be decided under Art. 136 and that a
writ petition under Art. 32 cannot be entertained and the order passed by
F
the High Court under Art. 226 operates as a res judicata for the maintainability of the writ petition under Art. 32. The order in writ petition No.
527 of 1990 dated July 16, 1993 .operates as constructive res judicata. The
petitioners might and ought to have raised the legality of their expulsion
from membership of the sqciety. The omission thereof operates as conG structive res judicata to maintain this writ petition. Considered from this
perspective, we are of the view that the writ petition is not maintainable.
Accordingly, the writ petition is dismissed with exemplary costs of Rs.
10,000. The costs of Rs. 10,000 will be paid to the Supreme Court Legal
Aid Committee. On failure, the latter is entitled to have it executed as a
• .
H decree of this court.
S. CHANDRA v. CO-OP. SOCIETIES
623
IN S.L.P. (C) No. 630/94.
A
The S.L.P. arises from the order of the Division Bench of the High
Court of· Delhi in W.P. No. 527/90 dated July 16, 1993. The petitioners
sought the relief that s. 34 of the Act, as unconstitutional and ultra vires
and a mandamus to the Registrar to appoint the Administrator of the B
respondent-Society under s.32 of the Act. The High Court negatived both
... ..
the reliefs. Thus this S.L.P. has been filed .
The petitioners have not canvassed before us the grounds on which
. the validity of s.34 was assailed and upheld by the High Court or of the
appointment of the Administrator under s.32 of the Act. On the other c
hand, the petitioners have contended that the Society had given a notice
'Annexure G' dated August 19, 1989 calling upon the petitioners to pay
Rs. 1,50,000 on or before October 18, 1989 and for the default in payment
thereto by the said Resolution, the petitioners have been expelled from D
the membership and that, therefore, in the pending proceedings, the High
Court directed stay of the expulsion on September 19, 1991. The High
Court was not justified in dismissing the writ petition on the ground that
the petitioners were not willing to deposit the entire dues' with interest
upto date. We find no force in the contention. It is seen that the
E
petitioners have not challenged the resolution of expulsion passed by the
general body and approved by the Registrar. Therefore, it is not necessary
for the High Court to go into the question of expulsion. What the High
Court has stated was that before considering the case of the petitioners
on the ground of default in paying the instalments, the High Court seems
to have given an opportunity to the petitioners to deposit the arrears with F
interest upto that date so that it could give suitable directions to the
society. Since the petitioners were not prepared to deposit the amount,
the court was not inclined to give the relief in that behalf. However, the
High Court has upheld the validity of s.34. In view of the fact that no
arguments have been addressed before us on the question of the validity G
of s.34 or the refusal to pass an order under s.32 of the Act for
appointment of an Administrator, it is not necessary for us to go into
those questions. Since the expulsion of the petitioners was not the subject
+
matter of the writ petition, we are not permitting the petitioners to argue
in that behalf. The special leave petition is dismissed.
H
624
SUPREME COURT REPORTS
(1994] 3 S.C.R.
A
It is prayed that the Society may be directed to refund the amount
which each of the petitioners had deposited and is stated to be Rs. 40,400.
We cannot give any such direction in the absence of the Society. However,
it is open to the petitioners to make the representation lo the Society
and the Society would dispose .of the representation in accordance with
B
Jaw for the refund of the amounts.
U.R.
Petition dismissed.
.
'
. .._
:::