Holding

The right to membership in a cooperative society is a statutory right, not a fundamental right, and the petitioners' failure to raise the expulsion issue earlier operates as constructive res judicata, rendering the Article 32 writ petition non‑maintainable.

Summary

The petitioners, members of a Delhi cooperative housing society, were expelled by a resolution of the society's general body on 22 February 1990, which was later approved by the Registrar. They filed several writ petitions in the Delhi High Court challenging the expulsion and other matters, but did not contest the expulsion itself. Subsequently, they approached the Supreme Court under Article 32 seeking to quash the expulsion, declare various actions of the society illegal, and obtain an administrator under Section 32 of the Delhi Cooperative Societies Act, 1972. The Court held that membership in a cooperative society is a statutory right, not a fundamental right, and that the petitioners' failure to raise the legality of their expulsion in the earlier High Court proceedings creates a constructive res judicata bar to the Article 32 petition. Consequently, the Supreme Court dismissed the writ petition and the accompanying special leave petition, directing the petitioners to seek relief, if any, through the statutory mechanisms provided by the Act. The Court also declined to consider the constitutionality of Section 34 or the appointment of an administrator, as those issues were not properly raised.

Issues considered

The nature of the right to membership in a cooperative society: statutory right or fundamental right enforceable under Article 32.
Whether the petitioners' omission to challenge their expulsion in the High Court gives rise to constructive res judicata, barring a subsequent Article 32 writ.
The constitutionality of Section 34 of the Delhi Cooperative Societies Act, 1972.
The entitlement to mandamus for appointment of an administrator under Section 32 of the Act.
The availability of a refund of deposits after expulsion.

Legislation cited

Code of Civil Procedure, 1908s. 11
Constitution of Indias. Article 136, s. Article 22, s. Article 226, s. Article 32
Delhi Cooperative Housing Societies Act, 1972s. 32, s. 34

Subjects

cooperative societymembership rightArticle 32constructive res judicataDelhi Cooperative Societies Act 1972Section 34Section 32special leave petitionmandamusstatutory remedyfundamental right

Judgment

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-Ex- •
pulsion 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 Peti-
tion-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 member-
F ship. The petitioners did not challenge their expulsion but the appoint-
ment 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 con-
G stitutionality of Section 34 of the Delhi Cooperative House Societies Act
1972, and for appointment of an Administrator of the Respondent-
Society 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
under a statute and not a fundamental right. If the petitioners have been B
.. ~
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 respondent-
Society to withdraw the expulsion resolution subject to the petitioners
paying the arrears with interest thereon, they had not availed of the court's
E

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 mem-
bers 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 :
-
(a) to quash the said Resolution;
F
(b) to declare that the appointment of Architect as bad, arbitrary and
illegal;

(c) to declare the dispensation of residential qualification for mem-
bership of society as arbitrary and illegal;
G
(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
Division Bench of the High Court, how the present writ petition is
c
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
made .in respect of the arbitration proceedings initiated against the E
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 member-
~
..
ship 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 in-
voked. 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 main-
tainability 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 con-
G 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
the membership and that, therefore, in the pending proceedings, the High
D
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
petitioners have not challenged the resolution of expulsion passed by the E
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. ' ..._.

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