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President, Tappers Co-operative Society, Kothapalli Vs. Dy. Registrar of Co-operative Societies, Karimnagar North and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 696 of 1964
Judge
Reported inAIR1966AP160
ActsHyderabad Co-operative Societies Act, 1952 - Sections 71 and 71(2); Hyderabad Co-operative Societies Rules - Rule 7A
AppellantPresident, Tappers Co-operative Society, Kothapalli
RespondentDy. Registrar of Co-operative Societies, Karimnagar North and ors.
Appellant AdvocateT. Dhanurbhanudu, Adv.
Respondent AdvocateO. Audinarayana Reddy, Adv. for ;3rd Govt. Pleader and ;B.P. Jeevan Reddy, Adv.
DispositionPetition dismissed
Excerpt:
.....on ground of rule 7a being ultra vires - nothing to preclude legislature from empowering specified rule making authority to provide by rules a right of appeal - rule so made is valid - vires of rule 7a falls within ambit of section 71 - it relates to admission of new members to society - rule 7a is not invalid or ultra vires of provisions of act. - - such authority can well be conferred by the legislature in the shape of a rule-making section. this matter is clearly comprehended by section 71 (2) (d). the words the mode of election of admission of members' occurring in that provision makes this clear. 7. what i stated above would show that the case in hand bears close affinity to, 1942-1 mad lj 390: (air 1942 mad 466). the only difference -and it is superficial -is that in..........by claiming that rule 7-a is intra vires the act and falls properly within the scope of the rule-making powers conferred on the government by section 71 of the act.4. the learned counsel for the petitioner has relied on the decision of a full bench of the madras high court in nagappa v. annapoorani, ilr 1941 mad 261: (1941) 1 mad li 164: air 1941 mad 235 (fb). that case related to the validity of rule 8 framed under section 28 of the madras agriculturists relief act (iv of 1938). by this rule, appeals were provided from certain orders passed under sections 18 (1), 19, 20, 22, 23 and 24 of madras act iv of 19s8. the validity of this rule was sought to be supported by reference to the provisions of section 28 which was the rule-making section in that act. the fall bench held that.....
Judgment:
ORDER

Gopalakrishnan Nair, J.

1. This is a petition for a writ of certiorari to quash the order dated 9-4-1964 passed by the first respondent, Deputy Registrar of Co-operative Societies, on an appeal from an order passed by the petitioner as the President of the Tapper's Co-operative Society, Kothapalli. Respondents 2 to 15 applied to the President of the Co-operative Society (petitioner herein) for being admitted as members of the Society The application was made under Rule 7 of the rules framed under the Hyderabad Co-operative Societies Act (hereinafter referred to as the Act). The petitioner as President of the Co-operative Society rejected their application. Thereupon they preferred an appeal under Rule 7-A to the Deputy Registrar of Co-operative Societies (first respondent) from the order of the President. The Deputy Registrar allowed the appeal and directed respondents 2 to 15 to be admitted as members of the Society. This order is now impugn ed by the President of the Co-operative Society in these writ proceedings.

2. The main ground on which this writ petition is rested is that Rule 7-A which provides for an appeal from the order of the President of the Society to the Deputy Registrar of Co-operative Societies is ultra vires the Act and that therefore, the order which the Deputy Registrar passed in the appeal is null and void. In support of this contention, the learned counsel for the petitioner has invited ray attention to Sections 53 (2), 56 (6) and 66-C of the Act. These sections provide remedies by way of appeal and revision from certain orders passed by the Registrar and the Liquidator under the Act. The argument is that these provisions show that whenever the legislature intended to provide remedies of appeal and revision, it resorted to express enactments to achieve the object. But no section of the Act provides for an appeal against an order refusing to admit a person as a member of the Society. It is further submitted that a right of appeal must be conferred by the main enactment itself and not by means of a subordinate legislation. Rule 7-A made by the Government is therefore outside the contemplation of the Act and consequently invalid.

3. The respondents counter these contentions by claiming that Rule 7-A is intra vires the Act and falls properly within the scope of the rule-making powers conferred on the Government by Section 71 of the Act.

4. The learned counsel for the petitioner has relied on the decision of a Full Bench of the Madras High Court in Nagappa v. Annapoorani, ILR 1941 Mad 261: (1941) 1 Mad LI 164: AIR 1941 Mad 235 (FB). That case related to the validity of Rule 8 framed under Section 28 of the Madras Agriculturists Relief Act (IV of 1938). By this rule, appeals were provided from certain orders passed under Sections 18 (1), 19, 20, 22, 23 and 24 of Madras Act IV of 19S8. The validity of this rule was sought to be supported by reference to the provisions of Section 28 which was the rule-making section in that Act. The Fall Bench held that the provisions of Section 28 did not empower the impugned rule to be made. They reasoned that the making of a provision for appeals from certain orders passed under the sections of Madras Act IV of 1938 amounted to adding something to the Acf which was obviously beyond the legitimate scope of subsidiary legislation. In coming to this conclusion the learned Judge of the Full Bench relied upon the decision of the Judicial Committee in Minakshi Maidu v. Subramanya Sastri, ILR 11 Mad 26 (PC), where it was pointed out: -

'In approaching the consideration of this question, their Lordships cannot assume that there is a right of appeal in every matter which comes tinder the consideration of a Judge, such a right must be given by statute, or by some authority equivalent to a statute.'

The Full Bench also referred to the decision of Bramwell LJ in Sandback Charity Trustees v. North Staffordshire Rly Co., (1877) 3 QBD1 for the proposition that a right of appeal could not be implied. They quoted from the speech of Lord Westbury, I. C. in Attorney General v. Sillem, (1864) 10 HLC 704, to show that thecreation of a new right of appeal is plainly an ACt which requires legislative authority.

5. The salient features of ILR 1941 Mad 261: AIR 1941 Mad 235 (FB), (supra) are (a) that the rule-making Section 28 of Madras Act IV of 1938 permitted the Provincial Government to make rules only 'for carrying into effect the purposes of the Act' and the impugned Rule 8 did not fall within its scope and (6) that Rule 8 sought to add to the provisions of the Madras Act IV of 1938 by providing a right ol appeal which the legislature did not think fit to prescribe. This case is not an authority for the wide proposition that in no event can a right ol appeal be created by subsidiary legislation. A rule which falls squarely within the Rule-making powers conferred by the statute will be a valid rule and it cannot be struck down merely because it confers a right of appeal. There is nothing to preclude the legislature from empowering a specified rule-making authority to provide by rules a right of appeal in a particular class of cases. A rule so made will be valid. Thus, the validity of a rule prescribing a right of appeal will depend upon the terms of the particular statute. No doubt, the creation of a right of appeal requires legislative authority. Such authority can well be conferred by the legislature in the shape of a rule-making section. The only question will then be whether the rule creating a right of appeal falls within the purview of the rule-making authority granted by the legislature. There is also a distinction between a rule which provides for an appeal from orders made under the sections of the main enactment and a rule which provides for an appeal from orders passed under another rule. In the former case, it is possible to say that the rule seeks to add to the provisions of the enactment by prescribing an appeal which the legislature did not see fit to provide. But in the latter case, there can be no question of the provisions of the statute being sought to be added to or enlarged by making a rule creating a light of appeal from orders passed under another rule. This aspect of the matter has been fully dealt with in Perumalla Venkayya v. Batchu Fullayya 1942-1 Mad LJ 390: (AIR 1942 Mad 466), by a Division Bench of the Madras High Court consisting of Wadsworth, J. and Patanjali Sastri, J, (as he then was). This decision has discussed and distinguished the earlier Full Bench decision in ILR (1941) Mad 261: AIR 1941 Mad 235. The Division Bench ruling is important in that it dealt with the validity of Rule 9 of the rules made under Madras Act IV of 1938 which created a right of appeal. It is also significant that the learned Judges, who rendered the decision in 1942-1 Mad' LJ 390 : (AIR 1942 Mad 466), are those who made the order of reference to the Full Bench in, AIR 1941 Mad 235 (supra). Rule 9 which was considered by the Division Bench provided a tight of appeal from orders passed under Rule 7. They held that Rule 9 was valid and intra vires Madras Act IV ot 1938. In repelling the contention that the decision of the Full Bench applied to the case their Lord ships observed.

'A Full Bench of this Court decided in thecase of ILR 1941 Mad 261: AIR 1941 Mad 235 (FB) that Rule 8 of the rules relating to the procedure for dealing with debts embodied in decrees which are to be modified under Act IV of 1938, was ultra vires on the ground that it adds to the procedure laid down in Section 19 of the Act a power of appeal which the Legislature did not see fit to prescribe. It was observed that in making a rule providing for such appeals, the Provincial Government is not making a rule for carrying into effect the purposes of the Act, hut it is adding something to the Act. Now the decision of the Full Bench does not, in our opinion, affect the disposal of the case before us. We are concerned not with the addition of a right of appeal to a procedure prescribed by the statute but with the insertion of a right of appeal in a procedure prescribed by rules under the statute.'

But, Mr. Dhanurbhanudu for the petitioner argues that the later decision of the Division Bench in, 1942-1 Mad LJ 390: (AIR 1942 Mad 166) is not applicable to the facts of the present case. Therefore, the narrow question that now arises for consideration is whether the instant case is governed by the principle of the decision of the Full Bench in, AIR 1941 Mad 235 (supra) or of the decision of the Division Bench in 1942-1 Mad LJ 390: (AIR 1942 Mad 466) (supra) which distinguished the Full Bench ruling. To my mind, the decision in, 1942-1 Mad LJ 390: (AIR 1942 Mad 466), is quite apposite to the facts of the present case. To elucidate this position, it is necessary to make a brief reference to the relevant provisions of the Act.

Section 71 of the Act reads:--

71 (1) 'The Government may, for the whole or any part of the Hyderabad State and for any registered society or class or such societies, make rules to carry out the purpose of this Act.

(2) In particular and without prejudice to the generality of the foregoing power such rules may provide for all or any of the following matters namely:-

(a) *** ***

(b) *** ***

(c) *** ***

(d) the conditions to be complied with by persons applying for admissions or admitted as members, the mode of election of admission of members and the payment to be made and interest to be acquired prior to the exercise of the rights of membership.'

The instant case relates to the admission of new members to the Society. This matter is clearly comprehended by Section 71 (2) (d). The words the mode of election of admission of members' occurring in that provision makes this clear. There is no provision in the Act itself which deals with the admission of new members to the Society. It can scarcely be gainsaid that the legislature could not have intended that no new members should be admitted to the Society after its formation. On the other hand, the entire scheme and object of the Act suggest that the legislature contemplated admission of new members. The only express provision regarding the mode of admission of members to the Society is to be found in Section 71 (2) (d). This provision empowers, the Government to make rulesregarding admission of new members to the Society. Thus, the entire field regarding the admission of new members is left by the Act to the rule -making authority. Therefore, a rule made in exercise of this power cannot be regarded as seeking to add to or enlarge the provisions of the Act. This aspect of the matter renders the rulling of the Full Bench in, ILR 1941 Mad 261: MR 1941 Mad 235 (KB), inapplicable to the instant case.

6. The vires of Rule 7-A does not admit of doubt or dispute. If validly falls within the ambit of Section 71 of the Act, It directly relates to the admission of new members to the Society, It prescribes the procedure for their admission. The Act has left it to be provided by rules. Rule 7-A has therefore, only sought to achieve what the Act intended it to achieve. No question of exceeding the scope or intendment of the Act can therefore, arise. Rule 7-A is fully supported by legislative authority and is in accord with it. Asking the applicants for membership to make written applications to a specified authority (President in tills case) and requiring that authority to state its reasons for rejecting the applications and providing for appeals from the orders of rejection to the Registrar of Co-operative Societies, constitute the mode and the procedure for admission of new members to the Co-operative Society, I am not therefore, able to agree that Rule 7-A is invalid or ultra vires the provisions of Act.

7. What I stated above would show that the case in hand bears close affinity to, 1942-1 Mad LJ 390: (AIR 1942 Mad 466). The only difference -- and it is superficial -- is that in Venkayya's case, 1942-1 Mad LJ 390: (AIR 1942 Mad 466), a separate Rule 9 provided for appeals from orders passed under another Rule 7. Here the passing of the original order as well as the preferring of the appeal against it is dealt with by the same Rule 7-A, But this cannot make any difference in principle. The true position is that Rule 7-A consists of two distinct and separate parts, one dealing with the passing of an order on an application for membership and I ho other relating to the preferring of an appeal from a rejection of that application. Thus, the present case is nearest to 1942-1 Mad LJ 390: (AIR 19-12 Mad 466). I need hardly say that the principle of the decision in, 1942-1 Mad LJ 390: (AIR 1942 Mad 466), governs the instant case also. This means that Rule 7-A has to be held to be valid. This conclusion necessitates the dismissal of this writ petition because the only ground on which It is rested is now found to be untenable.

8. In the result, this Writ Petition fails andis dismissed. The petitioner will pay the costsof the respondents. Advocate's fee Rs.100.


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