SANT LAL GUPTA & Ors. v. MODERN COOP. GROUP HOUSING SOCIETY LTD & Ors.

Society (A co-operative Group Housing Society). The Society proposed ex·pulsion of some of its members, including the appellants. The proposal was sent to the Registrar of the Co-operative Societies for approval. The Society submitted its records before the Registrar after B about 7 years. Thereafter, the Registrar passed its order, . rejecting the proposal. The Society filed revision before the Financial Commissioner, which was dismissed. The Society, then filed a writ petition. The High Court remanded the case to the Registrar for reconsideration. c The Registrar, after reconsidering the matter, again rejected the proposal. Revision against the order was also dismissed by the Financial Commissioner. The Society filed another writ petition. The High Court allowed the petition, setting aside the orders passed by the D Registrar and the Financial Commissioner. The High Court held interalia that since the resolution sent by the Society was not decided within 6 month as required u/r. 36(3) of the Delhi Co-operative Societies Rules, 1973, it would be deemed to have been approved, though there is no such deeming provision under the Rules. Therefore, E the instant appeal was filed. Allowing the appeal, the Court F HELD: 1.

It is evident from Rule 36(3) of Delhi Co- operative Societies Rules, 1973 that the legislature desired that every resolution regarding expulsion of its members, 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 G 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. Approval means confirming, ratifying, assenting, H 624 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R. A 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. Thus, the resolution passed by the Society B cannot be given effect to, unless approval is accorded by the Registrar as mandatorily required by the Delhi Co operative Societies Act, 1972 and the Rules. [Paras 9, 10 and 13] [633-H; 634-A-C; 635-A-B] Tri/ochan Mishra etc. v. State of Orissa and Ors. AIR 1971 C SC 733; Union of India and Ors. v. Mis. Bhimsen Walaiti Ram AIR 1971 SC 2295; State of Orissa and Ors. v. Harinarayan Jaiswa/ and Ors. AIR ~972 SC 1816; State of UP. and Ors. v. Vijay Bahadur Singh Ors. AIR 1982 SC 1234; Laxmikant and Ors. v. Satyawan and Ors. AIR 1996 SC 2052; Vijayadevi D Navalkishore Bhartia and Anr. v. Land Acquisition Officer and Anr. (2003) 5 sec 83 - relied on. E

1.

The Legislature in its wisdom has not enacted any deeming provision providing that in case the resolution is not considered and finally not 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 F 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 G 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 H SANT LAL GUPTA v. MODERN COOP. GROUP HOUSING SOCIET,Y LTD. 625 by judicial interpretation may amount to legislation, a field A exclusively within the domain of the legislature. Extension of the period from 6 months to 1 year, amounts to legislation. [Paras 14 and 17) [635-B-E; 636-C] Ajaib Singh v. Sirhind Coop. Marketing-cum-processing 8