Manmohan Sarin, J.
Rule.
1. With the consent of the parties, writ petition is taken up for disposal.
2. The petitioner has filed this writ petition seeking to assail the order dated 14.2.2000, passed by the Registrar, Cooperative Societies in case No. RCS/126/99/118-124. By this order, Registrar had taken cognizance u/s 60 and referred the disputes for arbitration u/s 61 of the Delhi Cooperative Societies Act 1972, (hereinafter referred to as ''the Act'') to Mr. D.S. Nijjer, Joint Registrar.
It may be noted that prior to invocation of arbitration, respondents 1 and 2 had instituted a civil suit for permanent injunction in the civil court. It appears that petitioners herein took objection to the maintainability of the suit on the ground that since Section 60 of the Act provides for arbitration in a dispute between the member and the Society, the civil suit was not maintainable. Respondent Nos. 2 and 3, in view of the objection withdrew the civil suit. It may be noted that respondent NO. 1 had not succeeded in obtaining an interim injunction in the suit and had gone in appeal, which appeal became infructuous in view of the withdrawal of the suit. The petitioners herein have now sought to assail the order of reference of the disputes to the Joint Registrar, Cooperative Societies, by this writ petition.
3. Learned counsel for the respondents at the outset submitted that such a writ petition would not be maintainable as it was to meet the objection of the petitioners on the maintainability of civil suit, that the respondents had invoked the statutory arbitration and initiated proceedings u/s 60 of the Act. Petitioner cannot be allowed to approbate and reprobate. While counsel for the petitioner was being heard on the question of maintainability of the writ petition, counsel for both the parties sought to address me on the merits of the controversy between the parties to the writ petition.
4. The relevant facts and the rival submissions may be briefly noted:-
Respondents 2 and 3 are the owners of House no. A-13 and A-14, Anand Niketan, New Delhi. Unfortunately the line of house of A-1 to A-14 does not have a service lane at the rear. This has increased the difficulty of these house owners. The case of respondents Nos. 3 and 4 is that utility services such as sewerage, water, telephone etc, pass at the rear of their houses, and are located within the club area i.e. property of petitioners 1 and 2. Very often there is back flow of sewage and urgent remedial measures are required to be taken. To take care of this situation, after negotiations and correspondence with the Secretary of the Petitioner Nos. 1 and 2, a room and a box like structure were constructed. Two doors were provided which gave access to the service area, through the box like structure. These are duly depicted in the plan filed as Annexure B to the counter to writ petition filed by respondents 2 and 3. The club area where the services are located is at a raised level.
5. The whole dispute between the parties centres around whether respondents 2 and 3 should have unilateral and uninterrupted access to this and other areas, or it ought to be regulated by the petitioners. Counsel for the petitioner society and club submitted that the land is admittedly the property of Society and the service area and the box made by erection of walls is also in the club area. This aspect is not disputed by counsel for respondents 2 and 3.
6. Learned counsel for the respondents heavily relies on a letter dated 7.4.1994, written by the respondents to the Society, acknowledged by the petitioners vide letter dated 10.4.1994. These recorded the arrangement to be followed with regard to the access to the respondents and others for maintenance of essential services. The relevant operative portion of the respondents letter of 7.4.1994 os as under:
"The access to the service area behind A-13 & A-14 will not be restricted. If a new wall or other such barrier is constructed, doors are to be installed on it. These doors, if they have locks, duplicate keys will be both with the Club and us, so that we can open the doors to access our service area in case of emergency (without having to call up anyone) 24 hours a day, 365 days of the year."
The above letter was confirmed by the petitioner vide their letter of 10.4.1994.
7. Mr. Atul Sharma heavily relying on this arrangement agreed between the parties submitted that respondents Nos. 2 and 3 are entitled to complete, unqualified, unilateral and uninterrupted access. Mr. Sharma further argued that the respondents should not be left at the mercy of the watchman of the petitioner, who may or may not be available at any odd hour or in the monsoon season etc, when the problem of back flow of sewage gets aggravated.
8. Learned counsel for the petitioner submitted that admittedly the box like structure, which has ben made, is on club land. The club has serious concerns about the safety of its members and young children, who play in the area and club ground. Any uninterrupted access to respondents 2 and 3 could be fraught with serious consequences. It cannot be free of the possibility of misuse of passage by servants of respondents, thereby exposing the children to risk. Petitioner''s counsel, in these circumstances, stated that two locks could be put on both the doors of the box. Counsel for the respondent is insisting on having a duplicate key for each of the locks that may be put. Learned counsel for the respondents submitted that key for both the locks should be available at least for 2 and a 1/2 months of monsoon season, when the problem of back flow of sewage is aggravated.
9. This controversy between the parties and rival submissions as noted above, has resulted in the parties being engaged in a protracted course of litigation, yet and resolution has defied them. The following summarises the litigation, which the parties have so far gone through based on the record produced.
(i) A civil suit was instituted by respondents 2 and 3 for injunction and declaration for securing their access to the service areas. Interim relief was, however, refused to the said respondents. Against refusal of the interim relief, the respondents preferred an appeal before the Senior Civil Jude. The petitioners raised objections to the maintainability of the suit on account of Section 60 of the Act, which makes a provisions, inter alia, for statutory arbitration of disputes between a member an the Society. As a result of these objections, the suit filed by the respondents was withdrawn and the appeal also became infructuous.
(ii) A petition u/s 60 of the Act for reference of disputes, was filed by the petitioner before the Registrar of Cooperative Societies. During the course of proceedings, an interim order dated 25.9.1998, was granted to the respondents. By the interim order, the petitioners were directed to give a duplicate key of the door of the box to the respondents. Petitioners challenged this order in revision before the Financial Commissioner. This was dismissed.
(iii) A civil writ bearing No. 464 of 1999 was preferred by the petitioners in this Court. The learned Single Judge declined to interfere. Further, the learned Single Judge proceeding on the basis as if arbitration proceedings were pending gave a direction, that the pleadings be completed and affidavits by way of evidence, required to be filed before the Arbitrator, be done. He also directed the expedition of the arbitration proceedings and directed the Arbitrator to give the Award at the earliest, but not later than two months of the date of the order i.e. 12.7.1999.
(iv) In the event, the Registrar Cooperative Societies on 14.2.2000, passed the order disposing the petition u/s 60 of the Act. By this order, he admitted the claim/disputes and referred the claim/disputes u/s 61 of the Act to Sh. D.S. Nijjer, Joint Registrar.
10. It would be noticed from the foregoing that while the Single Judge proceeded on the assumption that the arbitration proceedings were pending and had directed the arbitration award to be made within two months, the Registrar on the basis of record has only admitted the disputes and has now referred the matter for arbitration by appointing the arbitrator.
11. During the course of hearing on 18.9.2001, when I had heard the parties and dictated the order, the directions given by the learned Single Judge vide order dated 12.6.1999, in civil writ petition No. 464/99 were not brought go my attention. On noticing the same, I directed the matter to be listed on 24.9.2001, when after hearing counsel for the parties an order was passed keeping the order dated 18.9.2001, in abeyance up to 26.9.2001. The case was listed today. Counsel have been heard on the aspect of the order passed by the learned Single Judge in writ petition No. 464/1999, especially since the course of action being adopted by me was at variance with the order passed by the learned Single Judge earlier in CW No. 464/1999.
12. Learned counsel for the petitioner urged before me that from the order dated 14.2.2000, passed by the Registrar, it was clear that the order had been passed exercising his jurisdiction u/s 60 of the Act appointing an Arbitrator for reference of disputes, as is contemplated u/s 61 of the Delhi Cooperative Societies Act. Mr. Atul Sharma, counsel for the respondents, however, submitted that the interim order that had been passed on 25.9.1998 giving interim relief to the respondents, could only be passed in exercise of jurisdiction u/s 61 of the Act, which is the function of an Arbitrator, as the Registrar did not have the power to grant any interim relief, except when he was acting as an Arbitrator. He submitted that challenge to the said interim order by the petitioners had failed before the Financial Commissioner as well as in the writ petition before the learned Single Judge. Counsel also submitted that the order of the Single Judge in the writ petition showed that the parties were at ad idem on the proceedings being in the nature of arbitration. Curiously, while learned counsel for respondents supported the case that the nature of proceedings before the Registrar were arbitral proceedings, yet there is no challenge by the respondents to the order dated 14.2.2000, appointing a fresh arbitrator to go into the dispute. The order dated 14.2.2000 has been challenged by the petitioners only in this writ petition. Be that as it may, in my view, it may not be necessary to dwell further into this controversy. It is obvious that the order dated 14.7.1999, directing making of the award within two months by the learned Single Judge, has not been acted upon and neither of the parties sought its implementation of it hitherto before.
13. The present writ petition seeks to challenge the order u/s 60 of the Act passed by the Registrar appointing the Joint Registrar, as the arbitrator. It is sought to be urged that the disputes and claims, which are sought to be agitated by the respondents are outside the scope and ambit of Section 60 of the Act. The order is assailed as being without jurisdiction.
14. Considering the course of legal proceedings, which this trivial matter has already taken and as noticed by me in detail in paragraph 9 earlier, I am of the firm view that it is high time that the parties are rescued out of the quagmire and complexities of litigation in which they have got themselves enmeshed. It is high time that this controversy is laid to rest and a quietus is applied to further proceedings. This luxury litigation should not be permitted to consume any more judicial time and effort, which can be better utilised for attending to far more pressing and deserving matters. It may be noticed that the present petition would start yet another round of litigation with the saga of appeals, Special Leave Petitions etc. on a trivial issue. This is sought to be avoided. More so, because the controversy between the parties is not one which defies a solution.
15. The box like structure, admittedly, is the property of the petitioner''s society and the club. The concerns expressed by the petitioners'' society and club regarding the safety of children and risks in providing uninterrupted unilateral access to the respondents and their servants, cannot be simply brushed aside as mere baseless apprehensions. A perusal of the site plan filed as Annexure ''B'' to the counter affidavit of respondents shows the box like structure.
Having heard the counsel for the parties and perused the documents and the record, in my view, access through the door at point ''A'' may be provided to respondents 2 and 3 while for the door at point ''C'', two locks may be put by the petitioners and respondents 2 and 3 each having key of their respective locks. Learned counsel for the petitioners states that he would have no objection if a call bell is installed by respondents 2 and 3 connecting it to the watchman''s cabin so that the latter is available to open the petitioner''s lock at point ''C'' when required. Learned counsel for the petitioners further states that they have watchmen round the clock who would promptly attend to any such call. It may also be noticed that essentially the basic and primary responsibility of attending to choked sewers back flow of sewage and other bottle-necks in utilities that of the civic and other bodies, such as, MTNL. It is not that of the respondents themselves. In view of the petitioner''s categorical assertion that access to the area outside the box like structure would also be available promptly and within one hour, as and when required, I do not think any grievance of the respondent survives. I find the above to be fair and reasonable. Petitioners will ensure that access to the area outside the box when required by the respondents for attending to any service or utility is promptly made available and not later than one hour. Ordered accordingly.
16. If the parties act with grace and sagacity, there should be no problem in implementing the above arrangement. Learned counsel for the respondents submits that they were not claiming any proprietary rights or rights for possessions in respect of the area, within the box or outside and their only concern is the availability of access for attending to complaints of utilities. Learned counsel for the petitioners submits that should the petitioners at a later stage in future decide to seek possession of the land covered by the box like structure, the present writ petition should bar their right. Learned counsel for the respondents has no such objection, subject to it being open to the respondents to claim rights, if any, flowing from the settlement claimed by them.
17. As regards the scope and ambit of the directions that can be given by this court while exercising powers under Article 226 of the Constitution of India, reference may usefully be made to the following decisions of the Supreme Court. In
"The High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of this Court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their own powers."
Reference is also invited to
"It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India can take cognisance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High court, being extraordinary, is normally exercisable keeping in mind the principles of equity. On the the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priory, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can required the party to shed the unfair gain before granting relief.j"
Lastly reference may be made to the judgment of the Supreme Court in U.P. State Coop. Land Development Bank Ltd. v. Chandra Bhan Dubey wherein the court observed as under:
"The Constitution is not a statute. When the language of Article 226 if clear, one cannot put shackles on the High Courts by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals, whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitutions is so vast, the Supreme Court has laid down certain guide-lines and self-imposed limitations have been put there subject to which the High Courts would exercise jurisdiction, but those guide-lines cannot be mandatory in all circumstances....."
Having noticed the scope, ambit and principles underlying the exercise under Article 226 I am of the view that this is a fit case for invoking the extraordinary jurisdiction under Article 226 of the Constitution of India.
18. Normally in writ jurisdiction, I would have confirmed myself to the validity of the challenge to the impugned order. However, the protracted litigation, with prospects of more looming large without any solution at sight, impelled me to embark upon a course to settle the very controversy in these proceedings itself. As noticed in para 14, this luxury litigation over trivial matter should not be permitted to consume any more judicial time and effort. Accordingly in order to ensure substantial justice and avoid judicial time and effort being further spent on this luxury litigation, I have settled the controversy and thereby the impending arbitration proceedings also get disposed of.
