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Liyakat Ali Vs. Board of Revenue, M.P., Gwalior and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. Case No. 29 of 1980
Judge
Reported inAIR1984MP170
ActsMadhya Pradesh Co-operative Societies Act, 1961 - Sections 77, 77A, 80 and 95; Madhya Pradesh Co-operative Societies Rules, 1962 - Rule 66(6)
AppellantLiyakat Ali
RespondentBoard of Revenue, M.P., Gwalior and ors.
Appellant AdvocateK.L. Sethi, Adv.
Respondent AdvocateS.G. Gokhale, Adv.
Cases ReferredMannulal v. Krishi Sahakari Sakh
Excerpt:
.....rn 131) (supra) does not lay down good..........(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 he presented in the prescribed manner to the appellate authority concerned within 30 days of the date on which the order appealed against was.....
Judgment:

Oza, Ag. C.J.

1. This is a reference made to this Bench by one of us for answering the question :

'Whether the provisions of Rule 66 (6) (iv), M. P. Co-operative Societies Rules, 1962, operate as a bar to an appeal under Section 77 and revision under Section 80 M. P. Cooperative Societies Act?'

The learned single Judge while making the reference has referred to two decisions of this Court, both Division Bench decisions, in which the question has been considered. In one of them, i.e. the decision in Misc. Petn. No. 131 of l971 (Sirajratan v. The Joint Registrar. Co-operative Societies. M. P., decided on 2-2-1972 a Division Bench held that Rule 66 (6) (iv) will not comein the way of revisional jurisdiction under Section 80. M. P. Co-operative Societies Act, as it was held in that judgment that the revisional powers under Section 80 have been conferred under the Act itself and the rules framed under the Act cannot override (he provisions of the Act. The other Division Bench decision to which reference has been made by the learned single Judge in the reference order is the judgment in Mannulal v. Krishi Sahakari Sakh (Sakhar?) Samiti Narola Heerapur 1975 RN 131. In this judgment it has been held :

' That being so, the matter wasgovernment (governed?) by Rule 60 (6) (i). Since no application was made within thirty days from the date of sale, the Recovery Officer rightly made the order confirming the sale. An order made under Sub-rule (6) for confirmation of sale becomes final and is not liable to be questioned in any suit or other legal proceedings by reason of Clause (iv) thereof. The finality of the order of confirmation could not be challenged by way of appeal under Section 77 (1Mb) or revision under Section 80. Madhya Pradesh Cooperative Societies Act. 1960.'

But in this judgment it has not been considered as to whether rules framed under the Act could override the provisions of the Act itself. Learned counsel appearing for the petitioner attempted to contend that Section 77 of the Act provides for appeal but this Section 77 starts with the phrase 'save where it has been otherwise provided' which may include the provisions contained in the rules and on this ground it was contended that when in the rule, i.e. Rule 66 (6) (iv), it is provided that the order could not be challenged in any legal proceedings it will affect the jurisdiction under Section 77 also, whereas learned counsel appearing for the non-applicants contended that the rules have been framed under Section 95 and. Therefore, the rules could not have amended or modified the Act itself.

2. Section 77, it is not disputed, provides for an appeal. It reads :

'77. Appeals.-- (1) Save where it has been otherwise provided an appeal shall lie from every original order under 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 he 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.'

It is also clear that in this section it does say 'save where it has been otherwise provided' but it is clear that this otherwise provision has to be found in the Act itself as is clear that there is no otherwise provision in the Act. Rule 66 (6) (iv) reads :

'An order made under this sub-rule shall be final and shall not be liable to be questioned in any suit or other legal proceedings.'

What is provided is that it shall be final and shall not be liable to be questioned in any suit or other legal proceedings. Apparently the term 'suit or other legal proceedings' indicates not the proceedings under this Act and therefore it could not be said that this rule takes away the jurisdiction of the Appellate Tribunal under Section 77. Apart from it, these rules have been framed under Section 95 of the Act. Section 95 (1) reads :

'95. Powers to make rules.-- (1) The Government may, for the whole or any part of the State and for any society or class of societies, make rules for the conduct and regulation of the business of such society or class of societies and for' carrying out all or any of the purposes of this Act.'

This clearly indicates the purpose for which the power was given to the Government to frame rules as the last part of this sub-section clearly indicates 'for carrying out all or any of the purposes of this Act.' Sub-section (dd) of Section 95 (2) makes the matter further clear :

'(2) In particular and without prejudice to the generality of the foregoing power, such rules may -

(dd) prescribe the procedure for and method of recovery of any sums due under this Act or the rules.'

It is, therefore, clear that under Section 95 when the Act conferred powers on the State Government to frame rules in exercise of delegated powers, the State Government could not do what was only open to the legislature i.e. to amend or modify the provisions contained in Section 77 and in this view of the matter, therefore, the first sentence of Section 77 about any otherwise provision could not refer to a rule framed by an authority in exercise of delegated powers under Section 95 where the delegation is only for furtherance of the purpose of the Act. In this view of the matter, this contention advanced by learned counsel for the petitioner cannot be accepted.

3. So far as the revisional jurisdiction is concerned, Section 80 clearly provides :

'80. Powers of State Government and the Registrar to call for proceedings ofsubordinate officers and to pass orders thereon, subject to the provision of Section 77-A the State Government or the Registrar may call for and examine the record of any enquiry or the proceedings by any subordinate officer for the purpose of satisfying itself or himself as to the legality or propriety of any decision or order passed and as to the regularity of the proceedings of such officer. If in any case, it appears to the Stale Government or the Registrar that any decision or order or proceedings so-called for should be modified, annulled or reversed the State Government or the Registrar, as the ease may be, may pass such order thereon as to it or he may deem fit.

Provided that -

(i) no application for revision shall be entertained against an order appealable under this Act;

(ii) no application shall be entertained unless presented within 45 days from the date of the order challenged;

(iii) no order under this section shall be made to the prejudice of any party unless such party has had an opportunity of being heard,'

In this provision the only restriction put is subject to the provisions of Section 77-A and it could not be disputed that Section 77-A pertains to a different field altogether. It is, therefore, clear that this jurisdiction conferred under Section 80 which is without any impediment except what has been provided in this section itself, the rules framed under Section 95 could not lake away the jurisdiction conferred under Section 80. It is, therefore, clear that in our opinion Rule (66) (6) (iv). M. P. Co-operative Societies Rules, 1962, cannot operate as a bar to an appeal under Section 77 or a revision under Section 80. M. P. Co-operative Societies Act, and therefore the decision in Nannulal's case (1975 RN 131) (supra) does not lay down good law. It is, therefore, overruled.

4. Our answer to the question referred to us is that the provisions of Rule 66 (6) (iv), M. P. Cooperative Societies Rules, 1962 do not operate as a bar to an appeal under Section 77 and revision under Section 80, M. P. Cooperative Societies Act.


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