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Gangadhar Lalliram Vs. Nirvachan Adhakari Markiting Society, Vijayapur and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 11 of 1968
Judge
Reported inAIR1971MP16; 1971MPLJ199
ActsMadhya Pradesh Co-operative Societies Act, 1960 - Sections 67 and 77; Constitution of India - Articles 226
AppellantGangadhar Lalliram
RespondentNirvachan Adhakari Markiting Society, Vijayapur and ors.
Appellant AdvocateG.P. Patankar, Adv.
Respondent AdvocateP.W. Sahasrabudhe, Adv. and ;P.L. Dubey, Govt. Adv.
DispositionPetition dismissed
Cases ReferredBahorilal v. Keshav Prasad
Excerpt:
.....those orders which have been called as such in the act, but that word is comprehensive to embrace decision and 'award' as well, unless otherwise expressly provided in the act. we need only add that the broad lines of the general principles on which the court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rule which should be applied with rigidity in every case which comes up before the court'.in thansingh v. --it is well settled that when an alternative..........the word 'order' as used in section 77 of the act is comprehensive enough to include every decision award or order made under the act. the word 'order' is not a term of article it has no fixed legal meaning. in 67 cjs 520, the following statement occurs:--' 'order', as a noun, has been held equivalent to or synonymous with 'decision', see 26 cjs 38 note 68, 'finding' see 36 cjs 767 note 72, 'regulation', 'rule', 'resolution', 'shipment' and 'warrant' and has been compared with, or distinguished from, 'regulation' and warrant'.'the word 'order' has not been defined in the act like the code of civil procedure, which gives it a special meaning in order to distinguish it from a decree.15. it is remarkable that a decision or an award made under section 67 of the act has not been given.....
Judgment:

Shiv Dayal, J.

1. This is a petition under Article 226 of the Constitution.

2. The Vijayapur Co-operative Marketing Society is a registered society under the Co-operative Societies Act, 1960, (hereinafter called 'the Act'). The members of the society are classified into the following groups:

(1) The Co-operative Societies; (2) Agriculturists in the individual capacity. (3) Traders and others; (4) The Government. Election to the office of the members of Managing committee of the society for the period from 1968 to 1971 was held in the month of February 1968. The petitioner is a primary member of the Arrod Co-operative Society and is a representative of the said society. He filed nomination paper which was rejected by the Returning Officer. Nomination papers of four others were also rejected. Nominations of other six were accepted and they were declared elected to the Managing Committee.

3. The petitioner then filed an application under Section 64 of the Act challenging the rejection of his nomination paper and the acceptance of the nomination papers of respondents 2 to 7. He also contended that the notice which had been issued to the Assistant Registrar under Section 49(2) was bad inasmuch as it was served on the Assistant Registrar on February 3, 1968, for the general meeting to be held on February 17, 1968, in which the election was to be held. The notice ought to have been of 'at least fourteen clear days before the date of the meeting.'

4. The Deputy Registrar, Co-operative Societies, Gwalior Division, as nominee of the Registrar within the meaning of Section 66 of the Act, decided the dispute. By his order datedDecember 3, 1968. he rejected the petitioner's petition and declared the election valid. Aggrieved by that decision the petitioner filed this writ petition.

5. Shri Patanker, learned counsel for the petitioner, urged three grounds before us. (1) The notice of the meeting which was given to the Assistant Registrar under Section 49(2) of the Act was not valid so that the election was null and void. (2) His nomination paper was rejected on a technical ground, that the name of the society, which he represented, had not been entered in the nomination paper, (3) The nomination of Narendra Kramar (respondent No. 3) was wrongly accepted inasmuch as the society which he represented was indebted so that it was not eligible to contest the election.

6. Shri P.L. Dube, learned Government Advocate, raised a preliminary objection that the order of the Deputy Registrar was appealable under Section 77 but the petitioner did not prefer any appeal.

7. Section 77 of the Act reads thus:

'77. Appeals:-- (1) Save where it hasbeen otherwise provided, an appealshall lie from every original orderunder this Act or the rules thereunder-

(a) if such order is passed by any officer subordinate to the Registrar, other than Additional Registrar, or Joint Registrar, whether or not the officer passing the order is invested with the powers of the Registrar to the Registrar.

(b) If such order is passed by the Registrar, Additional Registrar or Joint Registrar to the State Government.

(2) A second appeal shall lie against any order passed in first appeal by the Registrar, Additional Registrar or Joint Registrar to the State Government on any of the following grounds and no other, namely:--

(i) that the order is contrary to law; or

(ii) that the order has failed to determine some material issue of law; or

(iii) that there has been a substantial error or defect in the procedure as prescribed by this Act which may have produced error or defect in the decision of the case upon merits.

(3) Every appeal shall be presented in the prescribed manner to the appellate authority concerned within 30 days of the date on which the order appealed against was communicated to the party affected by the order:

Provided that in computing the period of limitation under this Sub-section the time requisite for obtaining a copy of the order appealed against shall be excluded. (4) Where an application for membership has been rejected under Sub-section (4) of Section 19 an appeal shall lie in such manner, and to such authority, as may be prescribed, and the society to which the application for membership relates shall abide by such order as may be passed on such appeal.'

Shri Patanker's argument is that the impugned decision of the Deputy Registrar was not an 'order' within the meaning of Section 77 of the Act. It was an 'award', or, alternatively, it was a 'decision'. Learned counsel makes a distinction between these three words and urged that no appeal lies from a decision or an award; an appeal under Section 77 lies only against an order,

8. It is true that the three words are separately employed in the Act at different places. Section 64 of the Act enacts that 'disputes' as defined and referred to in that section must be referred to the Registrar by any of the parties to the dispute. The parties which can refer the dispute to the Registrar are also specified in the section. The decision of the Registrar on the question whether a dispute referred to him is a dispute within the meaning of that sections is final. Section 65 prescribes limitation for a dispute to be referred under Section 64. Section 66 confers jurisdiction on the Registrar to decide a dispute or to transfer it for disposal to a nominee or Board of Nominees to be appointed by him. The decision of such nominee or Board of Nominees shall be deemed to the decision of the Registrar.

9. Section 67 then lays down the procedure for settlement of disputes and power of Registrar, his nominee or board of nominees. Sub-section (3) of that section reads as follows:--

'67(3) The Registrar or his nominee or board of nominees, as the case may be, shall record a brief note in Hindi of the evidence of the parties and witness who attend and, upon the evidence so recorded and after consideration of any documentary evidence produced by either side shall give a decision or award, as the case may be, which shall be reduced to writing. In the absence of any party duly summoned to attend the dispute may be decided against him in default. In cases where three nominees are appointed, the opinion of the majority shall prevail:

Provided that where a dispute had been decided against any party in default, and if such party satisfies the Registrar within thirty days from the date of such default that there was sufficient cause for its non-appearance, the Registrar shall make an order setting aside the decision and shall appoint a date for proceeding with the dispute'.

(Underlined by us)

10. Shri Patanker's argument is that what is given under Section 67 is a 'decision' or an 'award', it is not an order. He lays emphasis on the language of Section 85 of the Act, which provides for 'execution of orders, etc.', where it is enacted:--

'Every order made by the Registrar under Sub-section (2) of Section 63 or under Section 64, every decision or award made under Section 66, every order made by the liquidator under Section 71, and every order made under Section 77 shall, if not carried out...............'

(Underlined by us)

The argument is that these three words are studiously used in different senses of the Act. They are not interchangeable so that a decision or an award is not an order and that being so, the impugned decision of the Registrar was not appealable under Section 77.

11. We must at once point out that the words 'decision', 'award' and 'order' have not been defined in the Act. It must also be said just now that the word 'award' does not occur anywhere in Section 66. Clearly enough, the last mentioned section provides for jurisdiction to decide a dispute referred to the Registrar under Section 64. There is no question of its execution. A decision or an award is made under Section 67 and the question of its execution may arise. This shows that the drafting of the Act is unhappy. It is also worthy of note that in Section 67 (3), the expression 'as the case may be' indicates that in certain situation a decision will be given, while in another situation an award will be given. But the distinction between these situations is not found in the language of the preceding sections.

12. In its ordinary connotation, an award is one which is made where all the parties to a dispute refer the matter for, decision, while a decision is given when a dispute is unilaterally referred for decision to an authority which has the power to decide it. But these meanings are not rigid in their application. In case of a statutory reference, even when it is by one of the parties, the decision may be called an award. For instance, under the Industrial Disputes Act. Section 68 of the Act is also indicative of this. It provides for attachment 'before award'. The word 'decision' does not find a place in that section. And could not be the intention of the legislature to provide for attachment when a reference is made by both the parties, but not when it is made by one of them. It could be thought that the word 'award' in Section 67 meant the final decision in contradistinction to an interlocutory decision, but then Section 85makes both award and decision executable. It is stated in 7 CJS 1311 that the word 'award' in a general sense means a judgment, sentence, or final decision. In its technical sense it means a decision of a tribunal, other than a court, to whom the parties to a controversy submit their differences. Then it is also stated as follows:--

'In other particular connections, it has been said that the noun 'award' as used in legal parlance, is synonymous with 'decision', 'determination', 'judgment' and 'report' and has been distinguished from 'agreement' and 'release'.'

13. The expression 'decision' has a wide connotation. Whenever a question is determined or a definite opinion is formed or a judgment is rendered, or a conclusion is arrived at, after weighing the reasons for and against the proposition, it is a decision. In 26 CJS 41, there is the following statement:--

'A popular and not a technical or legal word, and a very comprehensive term, having no fixed, legal meaning. It has been said that a derision necessarily involves a dispute, actual or potential, and the reaching of a conclusion; and it implies the power to say 'Yes' or 'No' .....In the civil law generally itmeans the determination of a question; the final order which disposes of a suit or cause; also that portion of a statute which orders or directs the performance of a duty......Under some circumstances'decision' has been held equivalent to, of synonymous with 'ascertainment'-See 6 CJS 788 Note 35, 'award' See 7 CJS 1311 Note 57 and 'order'-'

14. In our opinion, the word 'order' as used in Section 77 of the Act is comprehensive enough to include every decision award or order made under the Act. The word 'order' is not a term of Article It has no fixed legal meaning. In 67 CJS 520, the following statement occurs:--

' 'Order', as a noun, has been held equivalent to or synonymous with 'decision', See 26 CJS 38 Note 68, 'finding' See 36 CJS 767 Note 72, 'regulation', 'rule', 'resolution', 'shipment' and 'warrant' and has been compared with, or distinguished from, 'regulation' and warrant'.'

The word 'order' has not been defined in the Act like the Code of Civil Procedure, which gives it a special meaning in order to distinguish it from a decree.

15. It is remarkable that a decision or an award made under Section 67 of the Act has not been given finality. There are several provisions in the Act where orders and decisions have been declared to be final so that no appeal lies against them. Sub-section (3) of Section 64 itselfdeclares that a decision of the Registrar on the question whether a dispute referred to him is a dispute within the meaning of the section or not is final. It is a general policy of the law to provide for at least one appeal from every decision of a quasi-judicial tribunal. We are unable to find any special reason for departure from it in the case of a decision given by the Registrar or his nominee, when a dispute is referred to him under Section 64.

16. It is a well established rule of interpretation of statutes that in case of ambiguity in a procedural provision that construction, must be accepted which will advance the remedy rather than 'prevent it.

17. We are clearly of the opinion that the word 'order' employed in Section 77 has not been used in a limited sense as to be confined only to those orders which have been called as such in the Act, but that word is comprehensive to embrace decision and 'award' as well, unless otherwise expressly provided in the Act. We, therefore, hold that an appeal and a second appeal lay under Section 77 of the Act from the impugned order of the Deputy Registrar.

18. Now the question is whether, in spite of the alternative remedy having not been exhausted, this is a fit case for the exercise of our jurisdiction under Article 226 of the Constitution. It is not the law in our country that jurisdiction under Article 226 of the Constitution is barred by an alternative statutory remedy. The rule of exhaustion of statutory remedies, that is, this Court would ordinarily refuse to exercise its powers under Article 226 until and unless the statutory remedies have been exhausted by the petitioner, is not rigid. As their Lordships have pointed out in A. V. Venkteswaran v. R.S. Wadhwani, AIR 1961 SC 1506, the rule of exhaustion of statutory remedies before a writ is granted, is a rule of policy, convenience and discretion rather than a rule of law. After referring to the decisions in Union of India v. T.R. Varma, 1958 SCR 499 (503-504) = (AIR 1957 SC 882) and State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595 (605-607) = (AIR 1958 SC 86 at p, 93) their Lordships observed thus;--

'The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor-General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the ex-istence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rule which should be applied with rigidity in every case which comes up before the Court'.

In Thansingh v. Supdt. of Taxes, AIR 1964 SC 1419, Mr. Justice, J. C. Shah, speaking for the Court, said:--

'The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of jurisdiction is discretionary it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by an entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be by-passed, and will leave the party applying to it to seek resort to the machinery so set up'.

19. In a recent decision in Gita Devi Aggarwal v. Commr. of Income-tax, West Bengal, Civil Appeal No. 1619 of 1966, D/- 31-7-1969 (SC), after referring to Rashid Ahmad v. Municipal Board,Kairana, 1950 SCR 566 = (AIR 1950 SC 1163), their Lordships observed thus;--

'It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court for issue of a prerogative writ. It is true that the existence of an alternative remedy does not affect the jurisdiction of the Court to issue a writ but as observed by this Court in 1950 SCR 566 = (AIR 1950 SC 163) the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists, it will be a sound exercise of discretion for the High Court to refuse to entertain a petition tinder Article 226 unless there are good grounds therefor.'

20. In the present case, the petitioner lays a great deal of stress on the notice which was issued to the Assistant Registrar under Section 49(2) of the Act, His contention before us is that the notice was not of 'at least fourteen clear days' inasmuch as it was issued on the 3rd February for the meeting to be held on the 17th February, Learned counsel relies on Bahorilal v. Keshav Prasad, 1963 MPLJ 35. But we find from the order of the Deputy Registrar that the notice was actually issued on. the 1st February and it was served on the Assistant Registrar on the 3rd February. Shri Patankar contends that it is not a fact. Thus there is a controversy about facts, which can properly be decided in the appeal.

21. Shri Patankar's next contention is that the nomination of Narendra Kumar (respondent No. 3) was wrongly accepted inasmuch as the society which he represented was indebted and that was a disqualifiction. In this connection Shri Patankar contends that out of the various categories of members one is a society represented by a member and in that case, if the society is indebted, it cannot have a representative on the committee. It is not the indebtedness of the member personally but it is the indebtedness of the society which he represents that entails disqualification. According to the petitioner, Narendra Kumar filed his nomination not in his individual capacity but as representing the society and since the society was indebted, he was not eligible for election. From the record it is not clear that Narendra Kumar filed his nomination as representative of the society and was, therefore, to be a member of the category 'Ka'. It is a question of fact about which there is controversy. Itcan properly be decided before the appellate authority.

22. Likewise, Shri Patankar's third contention that his nomination paper was wrongly rejected just because he did not enter the name of the society to which he belonged and that this defect was merely technical, not substantial, also depends upon whether the petitioner filed his nomination paper in his individual capacity or as a representative of the society. In the latter case, it was essential that the name of the society had to be mentioned in the nomination form, the purpose being to ascertain whether the society was indebted or not. It, therefore, cannot be said that in the case of a candidate who files his nomination in the capacity of a representative of a society, the requirement to mention the name of the society is directory, not mandatory. It could be said in the case of a candidate who sought election in his individual capacity that to write the name of the society to which he belonged, was, merely directory and the omission to fill in that column was not a substantial defect in the nomination form. Thus the third point also involves a question of fact, which can properly be decided in appeal.

23. For these reasons, this is not a fit case where this Court would exercise its jurisdiction under Article 226 of the Constitution in favour of the petitioner. The petitioner can have recourse to the ordinary remedy by way of an appeal under Section 77 of the Act.

24. The petition is dismissed with costs. Counsel's fee Rs. 100/- (Rs. 50/- for the Government Advocate and Rs. 50/- for Shri Sahasrabudhe). The security amount shall be refunded to the petitioner.


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