Supreme Court upholds High Court's certiorari relief where Arbitrator ignored resignation records
A Bench of Justices Ujjal Bhuyan and Atul S. Chandurkar held findings resting on no evidence are errors of law, and dismissed the claimant's plot allotment appeals.
The Supreme Court has held that the Delhi High Court did not exceed its writ jurisdiction when it set aside concurrent orders of an Arbitrator and the Delhi Co-operative Tribunal directing a co-operative housing society to allot a plot to a claimant. In a judgment authored by Justice Atul S. Chandurkar, a Bench also comprising Justice Ujjal Bhuyan found that the Arbitrator had presumed the original claimant remained a member of the society while ignoring documentary material showing he had resigned in 1951 and was never re-admitted. The Court held that a finding recorded without any supporting evidence amounts to an error of law open to correction in certiorari jurisdiction. The civil appeals, pursued by the legal heir of the original claimant, were dismissed with no order as to costs.
How the membership dispute reached the Supreme Court
Mr. S.N. Sharma, the original claimant, said he was a member of M/s Burmah Shell Co-operative Housing Society and was entitled to allotment of a plot. Alleging illegal deprivation, he filed a dispute before the Joint Registrar, Co-operative Societies, Delhi, which was referred to an Arbitrator.
The Society questioned the appointment of the Arbitrator by filing a civil suit. Despite a restraint order in that suit, the Arbitrator proceeded and passed an ex-parte award upholding the claim. That matter reached the Supreme Court, which by judgment dated 21 August 2002 set aside the ex-parte award and directed continuation of the arbitration from the stage the Society was set ex-parte.
After remand, the Registrar — who had replaced the deceased original Arbitrator — concluded the proceedings. By award dated 7 October 2003, he held the original claimant was a member and directed the Managing Committee to allot a plot to his legal heir on full payment towards the cost of the land. The Society's appeal under Section 76 of the Delhi Co-operative Societies Act, 1972 was dismissed by the Tribunal in a short order dated 18 March 2004.
The Society then moved the Delhi High Court under Articles 226 and 227. By judgment dated 6 October 2010, the High Court found that neither the Registrar nor the Tribunal had considered relevant material, held the original claimant was never admitted as a member, and set aside both orders. The legal heir carried the matter to the Supreme Court.
What the Court held on certiorari jurisdiction
The core issue was the claimant's membership. The Arbitrator and Tribunal proceeded on the basis that, having once been inducted, the claimant had to be presumed to continue as a member during his lifetime, particularly as his name appeared in a list of members.
The Supreme Court framed the question as whether the High Court, in certiorari jurisdiction, was justified in interfering, or whether it exceeded its jurisdiction. The Bench answered that certiorari is supervisory, not appellate, but that a finding recorded without any evidence is perverse and constitutes an error of law that a writ court may correct.
Drawing on General Manager, Electrical Rengali Hydro Electric Project, Orissa v. Sri Giridhari Sahu and the Constitution Bench in Hari Vishnu Kamath v. Syed Ahmad Ishaque, the Court noted that a finding “not supported by any evidence would be perverse” and amenable to certiorari. It also referred to Central Council for Research in Ayurvedic Sciences v. Bikartan Das, which reiterated that findings based on no evidence or on surmises could be treated as errors of law.
On the appellant's reliance on Shalini Shyam Shetty v. Rajendra Shankar Patil, which distinguished the jurisdiction under Article 226 from Article 227, the Court held the ratio inapplicable because the Society's writ petition was filed under both Articles.
Why the Arbitrator's finding was perverse
Examining the record, the Court found that the Registrar and Tribunal glossed over relevant documentary material. This included the claimant's resignation and its acceptance recorded in the Managing Committee minutes of 5 May 1951, the transfer of his share to another member on 18 August 1951, rejection of his application for membership per minutes dated 5 November 1952, and rejection of his request to pay the deposit for a plot as late as 4 November 1979.
The Court said the Arbitrator failed to consider these documents, which, if considered, would have led to only one finding — that the claimant was not a member. The Arbitrator's order had recorded that the resignation and re-entry pleas were “neither supported by any reason nor by the law” and proceeded to presume continued membership. The Tribunal's cryptic order of six paragraphs affirmed this.
The Bench held the High Court was fully justified in interfering, finding no fault with its exercise of certiorari jurisdiction. It added that the High Court also rightly weighed equitable considerations, since there were four prior claimants seeking allotment of a plot, so the claimant's claim was rightly disregarded.
Having held the original claimant was never admitted as a member, the Court found it unnecessary to decide whether a plot was actually available for allotment, as the question of allotment would not arise at all.
Outcome
The Supreme Court declined to interfere with the High Court's judgment and dismissed the civil appeals with no order as to costs. Pending interlocutory applications were disposed of.