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The Lucknow Officials' Co-operative Housing Society Ltd. Vs. Registrar of Co-operative Societies and Ors. (24.11.1965 - ALLHC) - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 487 of 1963
Judge
Reported inAIR1967All305
ActsCo-operative Societies Act, 1912 - Sections 43(2)(1); Co-operative Societies Rules - Rules 133A and 174; Constitution of India
AppellantThe Lucknow Officials' Co-operative Housing Society Ltd.
RespondentRegistrar of Co-operative Societies and Ors.
Appellant AdvocateM.M. Lal, Adv.
Respondent AdvocateB.P. Misra, ;R.N. Shukla, ;A.N. Trivedi, ;B.N. Misra and ;R.N. Misra, Advs.
DispositionPetition dismissed
Excerpt:
.....(1) of sub section (2) of section 43 of co-operative societies act, 1912 - rule 174 permits the assistant registrar to hear an appeal under rule 133 - official status of assistant registrar does not change to registrar - held, rule 133-a is valid and not ultra vires. - - bindeshwari prasad failed to pay with the result that the allotment in his favour was cancelled by the society. in my judgment the submission is not well founded. i am, therefore, of the opinion that rule 133-a is perfectly valid and there is neither any legal difficulty in its existence nor is there any practical difficulty in its being administered. it is not for the first time that the legislature has enacted a provision like rule 133-a or rule 133, or rule 174 of the rules or section 3 of the act. for the..........the registrar. this appeal was transferred by the registrar for hearing to sri g.r.k. tandon, assistant registrar. sri tandon heard the appeal and allowed it by means of his order dated 21-11-1961 (annexure '3'). bindeshwari prasad filed an appeal against the order of sri tandon dated 21-11-1961 which was treated as a revision and heard by sri g. r. k. tandon aforesaid in the capacity of deputy registrar. sri tandon dismissed the revision application on 8-1-1962. annexure '4' is a true copy of sri tandon's order. bindeshwari prasad appealed against the order of sri tandon dated 8-1-1902 to the registrar who without giving notice to the society set aside the order dated 8-1-1962 by means of the order dated 11-5-1962 (annexure '5'). in this order the registrar directed sri d. s. verma.....
Judgment:
ORDER

J. Sahai, J.

1. The petitioner, the Lucknow Officials' Co-operative Housing Society Limited, Lucknow, (hereinafter referred to as the Society) is a primary society registered under the Co-operative Societies Act (hereinafter referred to as the Act). The respondent no. 4, Sri Bindeshwari Prasad Bajpai, (hereinafter referred to as Bindeshwari Prasad) is a member of the Society. The Society had obtained on lease some land situate on the Ashok Kumar Marg (formerly known as Outram Road). The land was divided into several plots one of which was allotted to Sarvasri Bindeshwari Prasad and R.K Bajpai jointly. The plot was, however, not actually demarcated at the spot.

A little later the State Government suspended the housing scheme mentioned above and framed a modified scheme. After the framing of the modified scheme, the lease granted to Bindeshwari Prasad and R.K. Bajpai was terminated by the Society and another plot was leased out to Bindeshwari Prasad alone on the condition that he would pay the arrears of ground rent and development charges in respect of the plot. Bindeshwari Prasad failed to pay with the result that the allotment in his favour was cancelled by the Society.

2. Dissatisfied with the cancellation order Bindeshwari Prasad applied to the Registrar, Co-operative Societies, U. P. (hereinafter referred to as the Registrar) to adjudicate upon the dispute that had arisen due to the cancellation of the plot. The Registrar appointed Sri Purshottam Krishna, Co-operative Incharge of the Society as the Arbitrator and on 22-7-1960 Sri Purshottam Krishna gave his award (annexure '2') directing the Society to give the original plot to Sri Bindeshwari Prasad and to accept all the sums due from him to the Society. The Society filed an appeal against the award dated 22-7-1960 before the Registrar. This appeal was transferred by the Registrar for hearing to Sri G.R.K. Tandon, Assistant Registrar. Sri Tandon heard the appeal and allowed it by means of his order dated 21-11-1961 (annexure '3'). Bindeshwari Prasad filed an appeal against the order of Sri Tandon dated 21-11-1961 which was treated as a revision and heard by Sri G. R. K. Tandon aforesaid in the capacity of Deputy Registrar. Sri Tandon dismissed the revision application on 8-1-1962. Annexure '4' is a true copy of Sri Tandon's order.

Bindeshwari Prasad appealed against the order of Sri Tandon dated 8-1-1902 to the Registrar who without giving notice to the Society set aside the order dated 8-1-1962 by means of the order dated 11-5-1962 (annexure '5'). In this order the Registrar directed Sri D. S. Verma to hear the appeal filed by Bindeshwari Prasad and dispose of as a revision of the order passed by Shri G.R.K. Tandon on 8-1-1962 Sri Verma heard the appeal and by means of the order dated 31-10-1962 (annexure '6') allowed it and set aside the order of the Assistant Registrar dated 21-11-1961 (annexure '3'). The Society filed a review application (annexure '7') before the Registrar against the order of Sri Verma dated 31-10-1962. That application was forwarded by the Registrar to the Deputy Registrar by means of his order dated 28 3-1963 (annexure '8'). The Deputy Registrar rejected the review application by means of the order dated 30-4 1963 (annexure '9'). Thereafter the present writ petition was filed in this Court

3. I have heard Sri Murli Manohar Lal for the Society, Sarvasri R.N. Shukla and B.P. Misra for Bindeshwari Prasad and Sri K.S. Verma, the learned junior Standing counsel for the Registrar, the Deputy Registrar, Co operative Societies, U. P. and the State of U. P.. The only submission that Sri Murli Manohar Lal has made before me is:

'The provisions of Rule 133-A of the Rules framed under the Co-operative Societies Act (hereinafter referred to as the rules) are ultra vires with the result that no appeal lay against the order dated 21-11-1961 passed by Sri G.R.K. Tandon. Assistant Registrar'

4. It is the admitted position that if Rule 133-A were ultra vires, the order dated 21-11-1901 passed by Sri Tandon would not be appealable. Mr. Lal places reliance upon the provisions of Section 3 of the Act and Rule 174 of the rules, which read:

'3. The State Government may appoint a person to be Registrar of Co-operative Societies for the State or any portion of it, and may appoint persons to assist such Registrar, and may, by general or special order, confer on any such person all or any of the powers of a Registrar under this Act'

'174 Assistant Registrar of Co-operative Societies and District Co-operative Officers are invested with the powers of the Registrar specified in Sub-section (4a) of Section 42 of the Act and in rules Nos. 12, 22, 27, 28, 39, 51, 52, 60, 61, 62, 64 68, 69, 70, 72, 77, 81, 82, 87, 115, 116, 117, 118, 122, 124, 125, 126, 132, 133, 134, 136 141, 144, 149, 150, 159. 160 and in Sub-rule (i) of Rule 137 and also in rules Nos. 73, 85, 166, 167, 169 and 170 in so far as primary societies are concerned.'

Rule 133 provides for an appeal against the award of an arbitrator and runs as follows:

'133. Any party considering itself aggrieved by the award of an arbitrator or arbitrators may appeal to the Registrar within one month of the date of the communication of the award, and the Registrar shall pass such orders as he deems fit: provided that the time taken in obtaining a copy of the award shall be excluded in counting the period of one month.'

The submission of Mr. Lal is that Rule 138 categorically provides for the hearing of an appeal by the Registrar and it is only by virtue of the provisions of Rule 174 of the Rules that the same is heard by an Assistant Registrar. He further contends that it is clear from the language of Rule 174 as also that of Section 3 of the Act that the Assistant Registrar while hearing the appeal under Rule 133 of the Rules exercises the powers of the Registrar. Analysed, Mr. Lal's submission comes to this that once that powers of the Registrar have been exercised under Rule 138 by a person competent to exercise them, the power is exhausted and thereafter the Registrar is not competent to hear a further appeal.

The right of a further appeal is provided by Rule 133-A which runs as follows:

'133-A. Any party considering itself aggrieved by the orders passed in appeal by an Assistant Registrar or District Co-operative Officer against an award, may appeal to the Registrar within 45 days of the date of the communication of the orders passed in appeal by an Assistant Registrar or District Co-operative Officer and the Registrar shall pass such order as he deems fit provided that the time taken in obtaining a copy of the orders passed in appeal by an Assistant Registrar or District Co-operative Officer shall be excluded in counting the period of 45 days.'

Mr. Lal's submission is that it is true that an appeal under 133 can be heard by an Assistant Registrar, but then the Assistant Registrar is the Registrar for the purposes of that appeal and it would be anomalous that a further appeal be heard by the Registrar himself against an order which is deemed to have been passed by himself. In my judgment the submission is not well founded. When the Assistant Registrar exercises the powers of a Registrar under Rule 174, he does not become a ful-fledged Registrar. He remains an Assistant Registrar alright, but only performs some of the functions of the Registrar Rule 133-A could validly be framed under Section 43 (2) (1) of the Act which reads:

'provided that any dispute touching the business of a society between members or past members of the Society or persons claiming through a member or past member or between a member or past member or persons so claiming that the committee or any officer shall be referred to the Registrar for decision or, if he so directs, to arbitration, and prescribe the mode of appointing an arbitrator or arbitrators and the procedure to be followed in proceedings before the Registrar or such arbitrator or arbitrators and the enforcement of the decisions of the Registrar or the awards of arbitrators;'

The provision is comprehensive enough to include a rule permitting a second appeal. Properly analysed, Mr. Lal's argument does not go to the extent of saying that Rule 138-A could not have been framed under the provisions of Section 43 (2) (1) of the Act. The argument only is that inasmuch as the Registrar disposes of the appeal under Rule 133, itwould be anomalous and absurd to provide a second appeal to himself.

5. There is a distinction between the invalidity of a provision and the difficulty in administering it. Learned counsel does not really challenge the validity of Rule 133-A on the ground of its being beyond the rule making power, but on the ground that the appeal lies before a wrong person. I have already pointed out earlier that even though the provisions of Rule 174 permit the Assistant Registrar to hear an appeal under Rule 133, the official status of the Assistant Registrar is not changed and he does not become the Registrar. There is, therefore, nothing anomalous in providing the second appeal against the order of the Assistant Registrar or the District Cooperative Officer to the Registrar. If the Registrar himself passes an order under Rule 133, Rule 133-A would not be applicable and no second appeal would lie as provided by the latter rule. I am, therefore, of the opinion that Rule 133-A is perfectly valid and there is neither any legal difficulty in its existence nor is there any practical difficulty in its being administered. For this reason I hold that the second appeal filed by Bindeshwari Prasad against the order dated 21-11-1961 (annexure '3') passed by Sri G.R.K. Tandon was competent.

6. Mr. Lal has placed reliance upon Ratan Rai v. R.A. Rahmani, 1960 All LJ 304. In that case the question thai required consideration was whether the election petition could be validly presented to the Additional Collector when the relevant provision required it to be presented to the Collector. It was held by a Division Bench of this Court that by virtue of the provisions of Section 14-A of the Land Revenue Act a legal fiction had been created by which the Additional Collector would be deemed to be a Collector and that for that reason the Additional Collector could receive the election petition. That case was decided on its own facts and in the light of the statutory provisions contained in the U. P. Land Revenue Act In my judgment that decision is not an authority for the proposition that merely because another person can perform some of the duties of a person, that another person becomes that person himself.

Mr. Shukla, on the other hand, has placed reliance upon Lallo v Joint Director of Consolidation U. P. Lucknow, 1965 All LJ 718. That was a case under the U. P. Consolidation of Holdings Act and the point raised and decided there was a different one from the one raised before me. I am, therefore, of the opinion that both the cases relied upon at the bar are distinguishable and cannot provide a precedent for deciding the instant case.

7. However, in my judgment, the provisions of the Act and the rules support the view that I have taken. It is not for the first time that the legislature has enacted a provision like Rule 133-A or Rule 133, or Rule 174 of the rules or Section 3 of the Act. A close parallel is provided by the provisions of the Provincial Insolvency Act. Section 3 of that Act reads:

'3(1) The District Courts shall be the Courts having jurisdiction under this Act:

Provided that the State Government may, by notification in the Official Gazette, invest any Court subordinate to a District Court with jurisdiction in any class of cases, and any Court so invested shall within the local limits of its jurisdiction have concurrent jurisdiction with the District Court under this Act.

2. For the purposes of this Act, a Court of Small Causes shall be deemed to be subordinate to the District Court.'

Section 75 of the same Act provides for an appeal and so far as relevant for our purposes reads:

'75. (1) The debtor, any creditor, the receiver or any other person aggrieved by a decision come to or an order made in the exercise of insolvency jurisdiction by a Court subordinate to a District Court may appeal to the District Court, and the order of the District Court upon such appeal shall be final:

Provided that the High Court, for the purpose of satisfying itself that an order made in any appeal decided by the District Court was according to law, may call for the case and pass such order with respect thereto as it thinks fit:

Provided further, that any such person arrived by a decision of the District Court on appeal from a decision of a subordinate Court under Section 4 may appeal to the High Court on any of the grounds mentioned in Sub-section (1) of Section 100 of the Code of Civil Procedure, 1908.'

It is obvious from these provisions that the Insolvency Judge is normally the District Judge, but the State Government may by notification in the official Gazette invest any court subordinate to the District Judge with the jurisdiction to hear cases under the Insolvency Act. In such a case the subordinate of the District Judge exercises the powers of the District Judge and yet an appeal to the District Judge is provided by Section 75 of the Insolvency Act. For the reasons mentioned above I am satisfied that the submission of Mr. Lal that the provisions of Rule 133-A of the rules are invalid has no force.

8. Even though I am taking that view, I am of the opinion that on the basis of the facts which are admitted the present writ petition must be allowed. There is no dispute whatsoever that Sri G.R.K. Tandon passed the order dated 21-11-1961 and yet heard and decided the appeal directed against that order: see order dated 8-1-1962 (annexure '4'). It is well settled that a person cannot be a Judge in his own cause. Actually the learned counsel for the parties agree that Sri G.R.K. Tandon was incompetent to hear the second appeal and his order dated 8-1-1962 (annexure '4') is without jurisdiction. That being the admitted position, all subsequent proceedings must be adjudged to be without jurisdiction.

9. I, therefore, allow this writ petition and quash all the orders subsequent to the onedated 21-11-1961 (annexure '3'). In exercise ofmy powers under Article 227 of the Constitution of India, I further direct that the recordof the case shall be sent back to the Registrar, Co-operative Societies, U. P., who willrestore the appeal filed by Bindeshwari Prasadagainst the order dated 21-11-1961 to its original number and direct it to be heard by anofficer competent to hear it. In the circumstances of the case parties are directed to beartheir own costs.


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