Dr. Arijit Pasayat, J.— Leave granted. Challenge in this appeal is to the judgment of the Delhi High Court in Writ Petition No. 686 of 1992 and Review Petition No. 268 of 2006 in the aforesaid writ petition.
2. Background facts in a nutshell are as follows: on 5-9-1962 Anoop Singh who as a member wrote to appellant Society asking for refund of monies (Rs 3110 towards membership and Rs 15,000 each for plot in the appellant's colony). The reason stated was that as the membership process with the appellant was getting delayed and he had purchased a plot in Green Park and as per government policy there are no chances of getting more than one plot in Delhi.
3. On 9-5-1972 late Anoop Singh filed an application for transfer of his membership in favour of his daughter, Respondent 2. On 18-11-1973, by a letter the appellant Society informed Anoop Singh that the Managing Committee by resolution dated 5-9-1973 allowed the transfer and asked for share certificate and other documents to enable transfer.
4. On 12-10-1978, appellant Society requested Anoop Singh to file an affidavit which was questioned by Respondent 2 by letter dated 27-10-1978. On 26-3-1979 Anoop Singh did not file the requisite affidavit and the Administrator of appellant Society by letter informed that the transfer could not be confirmed unless the affidavit is filed. On 14-4-1979 Anoop Singh replied stating that it is not possible to file the affidavit as he does not know full or part of leasehold or freehold of the property.
5. On 29-5-1979 the Administrator informed Anoop Singh of his inability to transfer the membership as the affidavit was not filed and asked to withdraw the deposit from the Society to which Anoop Singh requested for reconsideration vide letter dated 6-6-1979. On 11-7-1979 the appellant's administration made it clear that no allotment could be made in favour of Respondent 2 to which Anoop Singh again requested for reconsideration vide letter dated 11-11-1979.
6. On 22-3-1980 the appellant's administration informed Anoop Singh that even though Clause 5(2) of the lease deed provides for transfer without affidavit, allotment of the plot could not be possible unless the original member establishes his own eligibility for allotment of a plot. However, opportunity of personal hearing was granted to Anoop Singh.
7. On 24-11-1980, the Administrator of appellant Society removed the name of Anoop Singh categorically stating that it could not be transferred in favour of Respondent 2. On 22-1-1982, Secretary of the Society also by its letter informed Anoop Singh that transfer could only happen after submission of indemnity bonds and affidavits so it is suggested that Respondent 2 be made fresh member of the Society w.e.f the date of transfer. On 1-2-1982 Anoop Singh tendered his resignation.
8. On 14-2-1992 Respondent 2 filed WP (C) being No. 686 of 1992 without challenging the orders of the Administrator dated 26-3-1979, 29-5-1979, 11-7-1979 and 24-11-1980, seeking writ of mandamus asking the appellant and Respondent 1 for allotment of plot or in the alternative to refund money paid by Respondent 2.
9. On 30-10-1995 rule was issued. On 19-9-2005 ex parte proceedings qua the appellant Society were initiated in the High Court. On 16-2-2006 the High Court allowed the writ petition and issued directions to Respondent 1 to recommend the case to the appellant Society for allotment of plot in Category C of 125 sq yd. On 22-5-2006 the appellant Society came to know about the above order vide letter dated 22-5-2006 issued by Respondent 1.
10. On 1-7-2006 the appellant Society then filed a review petition being 268 of 2006 and on 1-9-2006 the High Court issued notice. On 19-1-2007 the High Court dismissed the review petition.
11. The High Court by the order in the writ petition held that the transfer in favour of Jasjit Kaur has been accepted by the Society and therefore she was entitled to allotment of the plot. It was held that the Registrar, Cooperative Societies had no authority in law to sit over the affidavit and not to recommend the case for allotment to Jasjit Kaur. A direction was therefore given to the Registrar, Cooperative Societies to forthwith recommend the case of Jasjit Kaur for allotment of plot in Category C of 125 sq yd. A review petition was filed inter alia taking the stand that after Mr Anoop Singh had asked for refund of money, and therefore, raising the question of any transfer in law did not arise. The review petition was rejected on the ground that no case for review was made out.
12. Mr K.T.S Tulsi, learned counsel for the appellant submitted that the High Court has clearly lost sight of various provisions, more particularly, Rule 25 of the Delhi Cooperative Societies Rules, 1973 (in short “the Rules”) framed under the Delhi Cooperative Societies Act, 1972 (in short “the Act”). It was pointed out that without availing the statutory remedies available under the Act and the Rules, Respondent 2 Jasjit Kaur filed a writ petition. Since disputed questions were involved, the High Court ought not to have interfered in the matter. According to him directions given are clearly contrary to law.
13. In response, learned counsel for Respondent 2 submitted that she has been fighting a battle for getting her legitimate right and after having accepted the prayer for transfer, the Society cannot turn around and take a stand that since Anoop Singh was disqualified, the order of the High Court is indefensible. In any event it is submitted that plot has been allotted pursuant to the High Court's order and, therefore, by passage of time the petition has become infructuous.
14. We find that before the High Court there was no appearance on behalf of the present appellant.
15. Rule 25 of the Rules reads as follows:
“25. Disqualification for Membership.— No person shall be eligible for admission as a member of a cooperative society if he—
(a) has applied to be adjudicated an insolvent or is an undischarged insolvent; or
(b) has been sentenced for any offence other than an offence of a political character or an offence not involving moral turpitude and dishonesty and a period of five years has not elapsed from the date of expiry of the sentence;
(c) in the case of membership of a housing society:
(i) owns a residential house or a plot of land for the construction of a residential house in any of the approved or unapproved colonies or other localities in the National Capital Territory of Delhi, in his own name or in the name of his spouse or any of his dependent children, on leasehold or freehold basis or on power of attorney or on agreement for sale:
Provided that disqualification of membership as laid down in sub-rule (1)(c)(i) shall not be applicable in case of co-sharers of property whose share is less than 66.72 sq m of land:
Provided further that the said disqualification shall not be applicable in case of a person who has acquired property on power of attorney or through agreement for sale and on conversion of the property from leasehold to freehold on execution of conveyance deed for it, if such person applies for the membership of the housing society concerned. [Amended on 6-8-1997]
(ii) he deals in purchase or sale of immovable properties either as principal or as agent in the National Capital Territory of Delhi; or
(iii) he or his spouse or any of his dependent children is a member of any other housing society except otherwise permitted by the Registrar.
2. Notwithstanding anything contained in the rules or the bye-laws of the cooperative society, if a member becomes, or has already become, subject to any disqualification specified in sub-rule (1), he shall be deemed to have ceased to be a member from the date when the disqualifications were incurred.
3. A member who ceases to be a member of a cooperative society under sub-rule (2) shall not be entitled to exercise rights of membership or incur liability as member with effect from the date referred to in sub-rule (2) but as from the date he becomes a creditor of the cooperative society in respect of the amount due to him on account of paid-up share capital, deposit, cost of land deposited or any other amount paid by him to the cooperative society as its member. As from the date of his ceasing to be a member of the society under sub-rule (2), the amount standing to his credit shall be paid to him by the cooperative society within 3 months and when the cooperative society is already under liquidation, the amount due to him will be credited as a debt due to a third party from the cooperative society.
4. If any question as to whether a member has incurred any of the disqualifications referred to in sub-rule (1) arises, it shall be referred to the Registrar for decision. His decision shall be final and binding on all concerned. The power of the Registrar under this Rule shall not be delegated to any other person appointed to assist the Registrar.”
16. For the purpose of the present case sub-rule (2) of Rule 25 is of paramount importance. There is a deemed disqualification. The effect of it has not been examined by the High Court.
17. “13. … It is, as noted above, a deeming provision. Such a provision creates a legal fiction. As was stated by James, L.J in Levy, Re, ex p Walton (1881) 17 Ch D 746, (1881-85) All ER Rep 548 (CA): (Ch D p. 756)
‘… When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.’
After ascertaining the purpose full effect must be given to the statutory fiction and it should be carried to its logical conclusion and to that end it would be proper and even necessary to assume all those facts on which alone the fiction can operate.
[See Hill v. East and West India Dock Co. (1884) 9 AC 448 (HL), State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory AIR 1953 SC 333, American Home Products Corpn. v. Mac Laboratories (P) Ltd. (1986) 1 SCC 465 and Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi (1996) 4 SCC 76.] In an oft quoted passage, Lord Asquith stated:
‘If you are bidden to treat an imaginary state of affairs as real, 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 flowed from or accompanied it. … The statute [states] that you must imagine a 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 inevitable corollaries of that state of affairs.’
(See East End Dwellings Co. Ltd. v. Finsbury Borough Council 1952 AC 109, (1951) 2 All ER 587 (HL) at AC pp. 132-33.)
‘… The word “deemed” is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.’
[Per Lord Radcliffe in St. Aubyn v. Attorney General (No. 2) 1952 AC 15, (1951) 2 All ER 473 (HL), AC p. 53.]
14. ‘Deemed’, as used in statutory definitions [is meant]
‘to extend the denotation of the defined term to things it would not in ordinary parlance denote, is often a convenient devise for reducing the verbiage of an enactment, but that does not mean that wherever it is used it has that effect; to deem means simply to judge or reach a conclusion about something, and the words “deem” and “deemed” when used in a statute thus simply state the effect or meaning which some matter or thing has — the way in which it is to be adjudged; this need not import artificiality or fiction; it may simply be the statement of an undisputable conclusion.’ (Per Windener, J. in Hunter Douglas Australia Pty. v. Perma Blinds (1970) 44 Aust LJ R 257.)
15. When a thing is to be ‘deemed’ something else, it is to be treated as that something else with the attendant consequences, but it is not that something else (per Cave, J., in R. v. Norfolk County Court (1891) 60 LJ QB 379).
‘When a statute gives a definition and then adds that certain things shall be “deemed” to be covered by the definition, it matters not whether without that addition the definition would have covered them or not.’
(Per Lord President Cooper in Ferguson v. McMillan 1954 SLT 109.)
16. Whether the word ‘deemed’ when used in a statute established a conclusive or a rebuttable presumption depended upon the context (see St. Leon Village Consolidated School Distt. v. Ronceray (1960) 23 DLR (2d) 32).
‘…. I … regard its primary function as to bring in something which would otherwise be excluded.’
(Per Viscount Simonds in Barclays Bank v. IRC 1961 AC 509, (1960) 3 WLR 280, (1960) 2 All ER 817 (HL) at AC p. 523.)
‘Deems’ means ‘is of opinion’ or ‘considers’ or ‘decides’ and there is no implication of steps to be taken before the opinion is formed or the decision is taken.
[See R. v. Brixton Prison (Governor), ex p Soblen (1963) 2 QB 243, (1962) 3 WLR 1154, (1962) 3 All ER 641 (CA) at QB p. 315.]”
18. Learned counsel for the appellant is right that normally when a statutory remedy is available, the same should be availed. In the instant case that aspect has also not been examined by the High Court. We are, therefore, of the considered opinion that the writ petition needs to be heard by the High Court afresh to be decided keeping in view the applicable legal provision.
19. Since no counter-affidavit had been filed by the present appellant before the High Court we permit it to do so within a period of one month. If any rejoinder is to be filed the same shall be filed within a period of two weeks from the date of filing of the counter-affidavit. We request the High Court to explore the possibility of disposing of the writ petition within a period of four months by fixing a definite date after a period of six weeks from today. Till the disposal of the writ petition by the High Court afresh, no third-party rights in respect of the plot which is stated to have been allotted to Respondent 2 shall be created by the appellant.
20. The appeal is allowed to the aforesaid extent with no order as to costs.