V.S. AGRAWAL Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) BOTH these writ petitions are being disposed of by a common judgment as the issues raised in both the writ petitions are the same and Petitioners in both the writ petitions are members of Housing Cooperative Society known as Yamuna Valley Engineer Employee Society.

(2.) THIS society was deregistered by the Deputy Housing Commissioner / Deputy Registrar, Uttar Pradesh Awas Vikas Parishad (Cooperative Section) vide order dated 1st August, 1995 (contained as Annexure No. 15 to the writ petition No. 1044 of 2003 (ms)). An appeal against the said order of deregistration was filed by the Petitioners and other members of the society quite belatedly after a period of seven years under Section 98 of the U.P. Cooperative Societies Act. However, this appeal was summarily dismissed by the Additional Registrar, Cooperative Society vide its order dated 19.2.2003 on two grounds, firstly on the ground of limitation and secondly on the ground of maintainability of the appeal before the Additional Registrar, Uttarakhand as according to the Additional Registrar such an appeal should have been filed before the Registrar, Cooperative Societies in U.P. What is important, however, is that the Additional Registrar did not exercise his jurisdiction as an appellate authority and has summarily dismissed the appeal without applying his mind on the merit of the case, therefore, in short, he has neither confirmed nor affirmed the decision of the Deputy Registrar on merits. In Writ Petition No. 514 of 2003 Lalit Pant v. Registrar Cooperative Societies, Uttaranchal, Dehradun, the order dated 1.8.1995 passed by the Deputy Registrar, Uttar Pradesh Awas Evam Vikas Parishad and the order of 19.2.2003 passed by the Additional Registrar, Cooperative Societies have been challenged, whereas in Writ Petition No. 1044 of 2003 V.S. Agrwal and Ors. v. State of Uttaranchal, only the order dated 1.8.1995 passed by the Deputy Registrar, Uttar Pradesh Awas Vikas Parishad has been challenged. The prayer has also been made in the writ petitions regarding execution of the sale deed in favour of the Petitioners and delivery of possession of the plots to the Petitioners. However, such a prayer cannot be entertained in a writ petition and therefore, no relief can be granted to the Petitioner as per this prayer is concerned, and therefore, this prayer stands rejected. Further new facts have merged before this Court by means of the counter affidavit filed by the State of Uttarakhand, wherein it has been stated that the order dated 1st August, 1995 passed by the Deputy Registrar by which the registration of the Society was cancelled has been recalled vide order dated 3rd March, 2004 passed by the Additional Registrar, Uttarakhand and therefore, the order against which the writ petitions have primarily been filed does not survive and therefore, the writ petition may be dismissed as infructuous. On this Learned Counsel for the Petitioner Senior Advocate Mr. Rajendra Dobhal has stated firstly that though it is now a fact that order dated 1st August, 1995 has been recalled by order dated 3rd March, 2004, this order is bad to the extent that it could not have recalled the order dated 1st August, 1995 since the order dated 1st August, 1995 has now merged in the order of the appellate authority dated 19tn February, 2003 and on application of the "doctrine of merger" what is liable to be recalled is the order of the appellate authority and not the order of the Deputy Registrar dated 1st August, 1995.

(3.) WHAT is important here is that the appellate authority has neither confirmed, nor affirmed the order of the Deputy Registrar in his order dated 19th February, 2003 on merit. The appellate authority has simply refused to entertain the appeal on the ground of limitation as well as on the ground of jurisdiction. Therefore it cannot be said that the order of the Deputy Registrar dated 1st August, 1995 has merged in the order of the appellate authority dated 19th February, 2003. There is no application of the doctrine of merger in the present case. This argument of the Petitioner also fails.