Holding

The 27 October 1987 notification is valid under Section 88, but the 29 August 1990 notification rescinding it is ultra vires and invalid.

Summary

The case concerned the Rehabilitation Ministry Employees Cooperative House Building Society Ltd., which sought to allot land to its members. The dispute arose over the seniority of members for plot allocation and the validity of two notifications issued by the Lt. Governor: one dated 27 October 1987 that exempted the society from Section 12 of the Delhi Cooperative Societies Act, 1972 and gave retrospective effect to an amended bye‑law from 10 January 1968, and another dated 29 August 1990 that rescinded the earlier notification. The Supreme Court held that the 1987 notification was within the powers conferred by Section 88 of the Act and therefore valid, but the 1990 notification was ultra vires because it effectively reviewed a quasi‑judicial order of 19 August 1985, which the Act does not permit. Consequently, the appeal was dismissed and the earlier notification remained in force, preserving the seniority determinations made by the High Court.

Issues considered

The validity of the 27 October 1987 notification under Section 88 of the Delhi Cooperative Societies Act, 1972.
The power of the Lt. Governor to grant retrospective effect to an amended bye‑law.
The validity of the 29 August 1990 notification rescinding the 1987 notification and its effect on a quasi‑judicial order dated 19 August 1985.
The applicability of the principle that a quasi‑judicial order, once final, cannot be reviewed without express statutory authority.

Legislation cited

Delhi Cooperative Societies Act, 1972s. 12, s. 76, s. 88
Delhi Cooperative Societies Rules, 1973s. 24
General Clauses Act, 1897s. 21

Subjects

cooperative societybye‑law amendmentretrospective legislationultra viresquasi‑judicial orderseniority of membersland allotmentnotificationSection 88Section 12Section 76Delhi Cooperative Societies Act

Judgment

I

H.C. SUMAN AND ANR. A
v.
REHABILITATION MINISTRY EMPLOYEES COOPERATIVE
HOUSE BUILDING SOCIETY LTD., NEW DELHI. & ORS.

AUGUS1 29, 1991
B
[S. RANGANATHAN, 'M. FATHIMA BEEVI AND
N.D. OJHA, JJ.)

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 C
27. IO. 1987 issued by Lt. Governor.

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 D
members of the Society fall 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 aller E
their superannuation. It may he mentioned that the members in the
third category were enrolled as members pursuant •to the amended
bye-law S(l)(a) (iii), at the Society's Managing Committee's meeting
held on 17.11.1979; Ai 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 F
affidavits.

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 chal-
lenged by the appellants before the Delhi High Court on the ground that
they are senior to 15 persons aforementioned and others. The appellants . G ·
also challenged the validity of the Notification dated 27th October 1987
insofar as it made the amended bye-law 5(l)(a)(iii) effective retrospec-
tively. ;t'he High Court having dismissed the petition, the appellants
have filed this appeal after obtaining special leave, and the question
involved for determination in the appeal inter alia relates to the senio-
rity of the members of the society which constitutes the basis for allot- H

839
840 SUPREME COURT REPORTS [1991] 3 S.C.R.

ment of plots at the time of drawing of lots.
A
Dismissing the appeal, this Court,

HELD: The notification dated 27th October, 1987, indicates that
by its earlier part the Lt. Governor has exempted the society from th~
B ·provision of 1'ection 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)(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 notifi-
cation but also from its Hindi version. [849E-F]
c
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
D 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 deprMng them
of their membership when they cannot become members of any other
society. It was pointed out by the Lt. Governor that the propllsed
amendment in the bye-law was "designed to regularise such of the
E 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 !hat the quasi-judicial order dated 19.8.1985 was also being res- .
cinded. On the facts and circumstances this hardly makes any diffe-
F rence 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 vi res on
this ground alone. [8578-C]

G A quasi-judicial order once passed and having become final can-
not be reviewed by the authority passing that order unless power of
review has been specifically conferred. [856CI

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
H an order has been conferred by the Act. [8560]
H.C. SUMAN v. CO-OPT. SOCIETY [OJHA,J .[ 841

Partap Singh v. State of Punjab, A.I.R. 1964 S.C. 72; Kruse v. A
Johnson, [1898] 2 Q.B. 91; Registrar of Cooperative Societies, Trivan-
drum & Anr. v. K. Kunhambu & Ors., [1980] 2 S.C.R. 260 at p. 267
and State of Kera/a & Ors. v. K.G. Madhhvan Pillai & Ors., [1988] 4
S.C.R. 669, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3382 B
of 1991.

From the Judgment and Order dated 19.5.1989/24.5.1989 of
Delhi High Court in W.P. N9- 2iH5 of 1988.

D.D. Thakur, V.C. Mahajan. N.S. Das Bahl. D.N. Puri. Mukul
Mudgal, Ms. A. Subhashini .. K. Yasudev, S. Mathur. Syed Ali
c
Ahmad, Syed Tanweer Ahmed. S. Balakrishnan, M.K.D. Nambodiri,
P.P. Tripathi and Ms;Sangita Garg for the appearing parties.

The Judgment of the Court was delivered by
D
OJHA, J. Special leave granted.

This Civil appeal by special leave is directed against the· order of
\ the Delhi High Court dated 19th May. 1989 a~ clarified by order dated
24th May, 1989 in Writ Petition No. 2915 of 1988.
E
The fads in brief necessary for the decision of this appoal 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 Employees' Cooperative House Building
Society Ltd., New Delhi, Respondent No. I (hereinafter referred to
as the Society) was formed and incorporated. After<:ompleting neces- F
sary 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 G
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 H
842 SUPREME COURT REPORTS [1991) 3 S.C.R.
'
place of 60 was to be allotted to the Society and that membership of
A
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 pursuance of the
B compromise learned counsel for the Delhi Development 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 parties.

The Society thereafter proceeded to make allotment of .land to
c 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. 2915 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
D to the draw of lots it is necessary to advert to some more facts.

Appellants 1 and 2 even though employees of Rehabilitation
·Ministry stood posted in its subordinate offices outside. Delhi. It
appears that even though only such persons who were employed and
posted in the Rehabilitation Ministry in Delhi itself were intended to
E ·be eligible for membership of the Society, appellants 1 and 2 were
enrolled as members of th~ Society on 22nd November, 1972 and 11th
January, 1974 respectively. Likewise, certain other persons who were
not employees of Rehabilitation .Yfinistry 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
F by the Society. '
With regard to such members who even though employees of the
Rehabilitation Ministry, were posted out.side Delhi, the Union
Cabinet in 1977 accepted a suggestion to enable Central Government
employees serving outside Delhi to become members of cooperative
G housing societies in Delhi. In pursuance thereof the Lt. Governor of
Delhi passed a consequential general order on 9th June, 1977 directing
that the 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
H will not be debarred from the membership of the Society simply on the
H.C. SUMAN v. CO-OPT. SOCIETY {OJHA,J .I 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 A
persons who had been ..ehrolled as members by the Society became
eligible to be members of the Society and subsequently their member-
ship was approved. As regards those persons who were employed in
other departments under the charge of Minister/Minister of State of
the Rehabilitation Ministry the Society by its Resolution dated 14th B
December, 1980 proposed an amendment of the bye-laws so as to
enable such. persons also to become eligible foF membership of the
Society. the proposed amendment which was to be inserted as bye-law
5(l)(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. c
Governor directed the bye-laws to be so amended as to provide for
eligibility of employees of a Ministry of which Department of
Rehabilitation had been a part. Jn pursuance of the aforesaid direction·
the amended bye-law 5(l)(a)(iii) was registered and incorporated into
. the bye-laws by the Registrar on 10th March, 1986. D
At this place Section 12 of the Delhi Cooperative Societies 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 .E
contrary having been provided in this behalf the amended bye-law
5(l)(a)(iii) was, in view of section t2 of the Act, to come into opera-
tion from 10th 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 F
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 G
• Societies which reads as hereunder:

"OFFICE OF THE REGISTRAR COOPERATIVE
SOCIETIES
H
New Delhi the 27th October, 1987
844 SUPREME COURT REPORTS [1991) 3 S.C.R.

NOTIFICATION
A
No. F. 46/2007/115/85/Bye-laws/Coop/5398:-ln exer-
cise of the powers conferred under Section 88 of the Delhi
Cooperative Societies Act, 1972, the Lt. Governor Delhi
has been pleased to exempt tlie Rehabilitation Min. Emp.
B 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 society as
re.gistered on 10.3.86 ~ill have retrospective effect from
10.1.1968, instead o.f 10.2.1986.

By Orderon behalfofL.G., Delhi.
c
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
D 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. 2915 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
E 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 I'
with their applications for membership, given full particulars in this I
behalf. It appears that subsequently this lacuna having come to its
notice the Society kept their membership in abeyance and gave them
F 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
G had been cleared both by the Registrar of Cooperative Societies and
the Ministry of Home Affairs (Department of Rehabilitation) in
aq:ordance 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 t!te Minister/Minister of
State of Rehabilitation Ministry. List 'C' on the other hand contained
.H the n.ames of such persons who were employees 'in the subordinate
H.C. SUMAN v. CO·OPT. SOCIETY IOJHA.J .] 845

offices of the Ministry/Department of Rehabilitation and were. posted
A
outside Delhi but wanted to settle in Delhi/New Delhi after retire-
ment. 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. Gov.ernor 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 meetmg by another Resolu- B
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
Higj1 Court in the judgment' appealed against that "there is no dispute
that the membership of these 26 nersons mentioned in List 'B' was
either approved by the General Body in the meeting held on 8th July, c
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. Gover- D
nor expressed in the Notification dated 27th October, 1987 was ultra
vires his powers in so far as it made the amended bye-law 5( l)(a)(iii)
effective retrospectively from IOth January, 1968. As regards 15persons
'of the third category referred to above the grievance of the appellants
before the High Court on the other hand was that they having filed
fresh affidavits after the appellants had been enrolled as members E
·could not be given seniority over the appellants in the matter of draw-
ing of lots. These contentions having been repelled by the High Court
by the orders appealed against the appellants have preferred this civil
appeal in which subsequently various interlocutory applications for
impleadment and other directions were made which too are being
considered hereinafter along with the appeal. F

In the appeal the real question which arises for consideration 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 G
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 H
846 SUPREME COURT REPORTS [ 1991] 3 S.' :.R.

been enrolled as.members could not be given seniority over the a1 •pel-
A
lants. The High ~ourt in the orders appealed against has pointec out
that the cases of these 15 persons were scrutinised by the scree 1ing
committee who recommended that they should be treated as re! ular
member of the society and share certificates be issued to them. It has,
further, been found by the High Court that these 15 persons '1ere
B admitted as members of the society either by the Managing Comm ttee
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 1heir
affidavits. It has held that since the membership of26persons fallir gin
category 'C' including the appellants was for the first time approve I by
c the Managing Committee in its meeting held on 17th November 979
and the i5 persons referred to above had been admitted as mem iers
prior to 17th November 1979 and in' the meeting held on .7th
November, 1979 their membership was only regularised, the 26
persons of cat~gory 'C' including the appellants would obvious!~ be
junior to the 15 members referred to above. In our opinion, the' iew
D taken by the High Court in this behalf does not suffer from. any 'uch
. error which may justify interference under Article 136 of the Cons· itu-
tion. Indeed no serious argument was addressed on this poin1 on
behalf of the appellants.

Now, we advert to the main submission made on behalf of the
E appellants with regard to the validity of the Order of the Lt. Gover nor
· indicated in the notification dated 27th October 1987 giving the
amended Bye-law No. 5(l)(a)(iii) retrospective effect from ·0th
January 1968. Before dealing with this plea, however, it is necessar 1 to
point out that during the pendency of the special leave petition gh ing
rise to this appeal, the Lt. Governor issued another notification d' ted
F 29th August 1990, the relevant portion of which reads as hereunder

DELHI ADMINISTRATION, DELHI
(COOPERATIVE DEPARTMENT)
OLD COURT'S BUILDING PARLIAMENT STREET:
NEW DELHI
G
Dated the 29th August, 1 J90

NOTIFICATION

No. F. 46/2007/115/85/Bye-laws/Coop./The Lt. Governor of the
H Union Territory of Delhi is pleased to rescind his notification Ho.
H.C. SUMAN v. CO-OPT. SOCIETY [OJHA,J .] ' 847

F. 46/2007/115/86/Bye-laws/Coop/dated 27th October, 1987, issued A·
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. B

By order and in the name of
the Lt. Governor of the
Union Territory of Delhi.

(A.C.KHER)
Sp!. Secy. (Cooperation) c
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 D
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 E
notification dated 27th October, 1987 which has been rescinded. In the
alternative, it has been urged that if the notification dated 29th
Augus(, 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.
I F
Since the validity of the notification dated 29th August, 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 G
. 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 Society 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 obvi-
ously been filed under Section 76(1)(b) of the Act and was ente.rtained H
848 SUPREME COURT REPORTS [ 1991] 3 S .C.R.

A and decided by the Lt. Governor in view of the provision contai11ed in
this behalf in Section 76(2)(c) of the Act. It cannot be disputed tb lt the
jurisdiction which the Lt.· Governor exercised in entertain in.: and
deciding the .appeal was of a quasi-judicial character. For allowi11g the
appeal the Lt. Governor in his order dated 19th August, 1985 ga 'e the
B following reasons:

"The rest of the proposed amendments, which are ba ;ed on
model bye-laws, with certain modifications, are aesig 1ed to
regularise such of the members, as were n9t the emp oyees
of the Department of Rehabilitation, but were emp oyees
of the Ministries, of which the Department of Reh< bilita-
c tion had been a part, from time to time, under one
Minister/Minister of State. As these persons, 11hose
number is stated to be not_.large, became members 3f the
. society many years ago, and their names also figm ed, as
has been stated by the counsel for the appellant, in 1 he list
· of members which was supplied by the society · o the
D
Department of Rehabilitation, and which formed th'' basis
for the allotment of land to the society by the Mini try 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."
E
It would, thus, appear that what weighed with the Lt. Go· ·ernor
apart from the other considerations stated in his order was th at the
proposed amendment to the bye-laws was "designed to regularise such
of the members" ........ "whose number is stated to be not arge"
and who "became members of the Society many years ago" ar. d that
F
"it would neither be fair nor just to leave them in the lurch now, by
depriving them of their membership, when they cannot b~come
members of any other society". If these were the considrations which
'weighed with the Lt. Governor in allo~ing the proposed an1endment it
can hardly be denied that the purpose of the order was not to give
G effect to the amended bye~law from the date on which it was registered
as contemplated by Section 12 of the Act, which date 111 the instant case
came to be 10th March, 1986 but from the date on which the first
person under this categorhwas enrolled as a member, for otherwise
the purpose of the order was bound to be frustrated and the order
would in that event be hit by the doctrine of brutum fulmen. This
H quasi-judicial order passed by the Lt. Governor has become final and
·H.C. SUMAt;I v. CO-OPT. SOCIETY [OJHA,J .1 849

it was really to give effect to this order that the order of the Lt.
A
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, strenuously
urged that the notification dated 27th October, 1987 is ult~a vires the B
powers of the Lt. Governor. He pointea·out that Section 88 of the Act
under which the said notification was issued does not authorise the
issue of a notification 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:
c
"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 D
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 E
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( l)(a)(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 t_he context of the notification but also from its Hindi version F
a photostat copy whereof has been produced before us. Transliterated
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 Rehabilitation Ministry Employees Coopera- G
tive 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 permitted H
850 SUPREME COURT REPORTS [1991) 3 S.C.R.

to enforce the amended bye-law 5(1)(a)(iii) with effect from 10.1.68.
A
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: operation. Suppose the notification dated 27.th October,
1987 had said "At the end of Section 12 of the Act add-provided that
B 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 th&t this would be
beyond the power conferred by Section 88 of the Act? The answer
\\'Ould have to be in the negative on a plain reading of Section 88.
Except for the unhappy language used therei.n the notification dated
27th October, 1987, does not seem to have been issued by the Lt.
c 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 ap_plicants in IA No. 13
of 1991 that Wth January, 1968 mentioned in the notification dated 27th
October, 1987 is the date on which the first member falling in category
D '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 qated 27th October, 1987 and
E 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
F been accidentally omitted, or adopting a construction
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 provi-
G sion 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 con-
strue it in a harmonious way to make it meaningful. An
attempt must always be made.so to reconcile the relevant
H provisio-ns as to advance the remedy_ intended by the
H.C. SUMAN v. CO-OPT. SOCIETY [OJHA,J, .J 851

statute. (See: Sirajul Haq Khan v. Sunni Central Board of A
Waqf, [1959] SCR 1287."

--t' Learned counsel for the appellants then urged that a delegated a
legislation could not be given retrospective effect unless it was specifi-.
cally provided for. He relied on the following passages from Wade on
Administrative Law (Fifth Edition): B

"It follows likewise that the courts must determine the
"
validity of delegated legislation by applying the test of ultra
vires, just as they do in other contexts. Delegated legisla-
tion in no way partakes of the immunity which Acts of
Parliament enjoy from chaUenge in the courts, for there is a C
fundamental difference between a .overeign 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 confsirm.s exactly to the power granted."
(page 748).
D
"Whether delegated legislation can have retrospec-
tive operation without express Parliamentary sanction is a
question upon which there is scant authority. It is natural to
presume that P~rliament is unlikely to confer a power
which it uses only most sparingly itself." (page 751).
E
"Just as with other kinds of administrative action, the
courts inust soinetimes condemn rules or regulations for
unreasonableness. In interpreting statutes it is natural to
make the assum·ption that Parliament could not have
intended powers of delegated legislation to be exercised
unreasonably, so that the legality of the regulations. F
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 pecisions of this Court were also cited in support of
the above propositions. Relying on Parlap Singh v. State of Punjab, G
~ AIR 1964 SC 72 it was further urged that ma/a 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 die ambit H
A
852 SUPREME COURT REPORTS [1991] 3 S.C.R.

of and permissible under Section 88 of the Act, Secondly, keeping in
view the facts of the instant case and the purpose of amending bye law
'
5( l)(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
B 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 unreasonableness. A bye-law so made ought io be
supported unless it is manifestly partial and unequal in its operation
between 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 position the notification dated 27th October, -... ·
c 1987 deserves to 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
0 notification dated 27th October, 1987 had the effect of defeating the
purpose of the Act and was consequently 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:

I! "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 Govern-
ment under Section 60 of the Act is to be exercised so as to
advance the policy and objects of the Act, according to the
F 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 h6id to be
bad on this score as well for the simple reason that the bye-law
5(:)(a)(iii) introduced by amendment consequent upon the quasi-
G judicial 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 retros-
pective 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
·H subserves the purpose of the amended bye-law made under the Act
H.C. SUMAN v. CO-OPT. SOCIETY {OJHA,J ./ 853

and does not aefeat it.
A
Lastly, it was urged by learned counsel for the appellants 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 respondents could not become members
unless their membership was approved as contemplated by Rule 24 of B
the Delhi Co-<Jperative Societies Rules, 1973. Suffi~e it to point out so
far as this submission is conC<)rned that with regard to members whose
names were mentioned in List 'B' of the affidavit filed by Shri S.C.
Saxena before it, the High Court, as already noticed earlier, has held
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 C
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' D
aforesaid eligible for membership of the Society with e~ect 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 S(l)(a)(iii) was actually incorporated in the bye-laws of
the Society. As pointed out by Lord Asquith in East End Dwellings E
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 'ea!,
you must surely, unless prohibited from doing so, also imagine as real
the consequences and incidents which, if the putative state of affairs
had in fact existed, must inevitably have followed from or accom-
panied it and that when the statute says that you must imagine a F
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 inevit- ·
able corollaries of that state of affairs.

Learned counsel for the appellants, however, urged that the
aforesaid principle of fogal faction cannot be invoked to put life in a G
still-born action and relied on the decision of this Court in B. Shama
Rao v. The Union Territory of Pondicherry, [1%7] 2 SCR 650. Having
gone through the decision we are of. the view that it is clearly dis-
tinugishahle. The facts of that case were that the legislative assembly
for the Union Territory of Pondicherry passed the Pondicherry
General Sales Tax Act (10 of 1965) which was published on June 30, H
854 SUPREME COURT REPORTS [1991] 3 S.C.R.

1965. Section 1(2) of the Act provided, that it would come into force
A
o:-i such date as the Pondicherry Government may, by notification,
appoint ands. 2(1) provided that the Madras General Sales Tax Act,
1959, ·as in force in the State of Madras imm<;diately before the com- ~

mencement of the Pondicherry Act, shall be extended to Pondicherry
subject to certain modifications, one of which related to the constitu:
B 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 r, 1966,
appointing April 1, 1966 as the date of commencement. Prior to the
issue of the notification, 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 .. .... .
c ..
When the Act had .come into force, the petitioner was served
with a notice to 'register hi..-nself as a dealer and he thereupon filed a
writ petition challenging the validity of the Act.

D After the petition was filed~ the Pondicherry Legislature 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 19{1(•". it )Yas
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
E as ruiiended 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:-
j
F "In the present case it is clear that the Pondicherry legisla-
ture 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 notifica-
tion it would be the amended Act which would apply. The
G legislature at that stage could not anticipate 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 suitabl<; in Pondicherry. In point of fact the
Madras Act was ahtended and by reason of section 2( 1)
H read with section. 1(2) of the Principal Act it was the
H.C. SUMAN v. CO-OPT. SOCIETY IOJHA,J .I 855

amended Act which was brought into operation in Pondi- A
cherry. The . result was that the Pondicherry 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 legislation by the Pondicherry
Assemly in favour of the Madras legislature and for that B
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 Notification to be valid.
c
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 considered. As 'noticed
earlier, the Lt. Governor had passed the quasi judicial order on 19th
August 1985 in an appeal filed by the society against the order of the D
Registrar declining amendment of ihe bye-law concerned. Relev;mt
findings of the Lt. Governor along with the reasons therefor 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 E
in the list of members which was supplied by the society to the Depart-
ment 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 "desig- F
ned 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 society
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 G
effective. The order of the Lt. Governor did not contemplate
fresh enrolment of those persons as members after the passing of
that order and the bye-law being amended in consequence thereof
but it contemplated regularisation of their membership. This clearly
indicated that those per-sons were sought to be treated as members
as from the dates on which they had factually become members H
X56' SUPREME COURT REPORTS [ 1991) 3 S.C.R.

A uf the society. We have also pointed out above that in our opin-
ion 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
man!_ler reviewed the quasi-judicial order dated 19th August 1985. On
B 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, 1990 which has to
c be kept in mind while. considering the true import of that notification.
It i~ 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 qausi-
judical order dated 19th August, 1985, as seen above, had been passed
D 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 Government 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 question in that
E case. No power of review had been conferred for review of an order
passed under Section 62. What was, however, 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 argument, it was held:
).
F "The learned counsel for the State then contended 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 exer-
cised from time to time as occasion requires. But that sec-
G a
tion cannot apply to an order made in eJ!ercise of 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
Panchayat Samithi. If the Government in exercise of that
H power cancels or confirms a resolution to the Panchayat
H.C. SUMAN v. CO-OPT. SOCIETY [OJHA,J .] 857

Samithi, qua that order it becomes functus officio. Section
62, unlike s. 72 of the Act does not confer a power on the
A
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
B
only and does not speak in clea.r terms that the quasi-judicial order
dated 19th August, 1985 was also being rescinded. On the facts and
circmustances 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 19!h August, 1985 has not been
.,. expressly nullified, it 1 has certainly for all practical purposes been
nullified by necessary1implication. This, in our opinion, could not be c
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-judicial order of the Lt.
Governor dated 19th August, 1985 and the notification dated 27th D
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 notifi-
cation 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 notification dated 29th August, 1990·was issued. E
The notification 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 ci,mnsel 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 ins. 21 of the F
General Clauses Act, 1897. In State of Kera/a and Ors. v. K.G.
Madh.avan 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 enforceable in law, the said right cannot
be taken away by a subsequent order under general power of rescind.-
men! available to th.e Government under the General Clauses Act and G
• 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 dismissed. H
858 SUPREME COURT REPORTS [1991] 3 S.C.R.

A 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 Notifica-
tion 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
B 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
August, 1990.. In the view we have taken we have not found it neces-
sary to go into t.hese questions.
C We now take up Interlocutory Applications made in the appeal.
Some of these applications have already _been disposed 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 indicated above. Since the notification dated 29th August, 1990
D 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 category 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
E appellants. 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 the.se 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 accordingly. In tile circumstances
of the case, however, the parties shall bear their own costs.

Y.Lal. Appeal dismissed.