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Chaman Lal Vs. State of Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 1649 of 1972
Judge
Reported inAIR1974P& H30
ActsConstitution of India - Articles 226 and 227; Punjab Co-operative Societies Act, 1961 - Sections 55 and 56
AppellantChaman Lal
RespondentState of Punjab and ors.
Cases ReferredDhananjoy Das v. Chairman
Excerpt:
.....petition was then filed under section 69 by five out of the seven respondents who had been unsuccessful in the appeal under section 68 of the act. the only consequence of failure to comply with the above two requirements is that the fact whether any such order has or has not been passed by the governor or the government is examination by the court and the immunity from being called in question in a court of law which attaches to an order or instrument properly authenticated and expressed in the name of the governor is not available to such orders......vehicles act with regard to the appointment of the state transport authority. the orders of the state government were not authenticated as required by article 166 of the constitution of india. while dealing with the effect of such an omission, the hon'ble judges were pleased to observe as follows:--'the state transport authority should be constituted by the state government and the constitution should be notified in the official gazette. an order constituting state transport authority can be regarded as an order by the state government if has been passed by the governor or any officer who has been delegated the power under the business rules framed by the governor in the exercise of his powers under article 166(3) of the constitution. the order has also to be expressed and to be taken.....
Judgment:
ORDER

1. This writ petition has been filed under Article 226 and 227 of the Constitution of India the following circumstances:--

Petitioner and respondents Nos. 6 to 15 are members of the Ludhiana Hosiery Industrial Workers' Co-operative Housing Building Societies Limited for Gandhi Nagar Colony. There was a dispute between these members about the embezzlement of certain transport charges. This dispute had been referred for arbitration of respondent No. 5 under Sections 55 and 56 of the Punjab Co-operative Societies Act, 1961(hereinafter briefly referred to as 'the Act'). Respondent No. 5 had given an award against respondents Nos. 6 to 14 on 15-10-1965. Respondents Nos. 6 to 12 had filed an appeal under Section 68 of the Act which had been dismissed by the Deputy Registrar of Co-operatives Societies (respondent No. 4) by his order dated 2-8-1971(Annexure 'A'). Respondents Nos. 13 and 14 had not joined the others in challenging this award in appeal.

2. A revision petition was then filed under Section 69 by five out of the seven respondents who had been unsuccessful in the appeal under Section 68 of the Act. This revision petition has been accepted by an Under-Secretary (respondent No. 2) of the Punjab Government (respondent No. 1) by his impugned order dated 14-1-1972(Annexure 'B').

3. The petitioner's contention is that respondent No. 2 had no jurisdiction to dispose of this revision petition on that date on which be passed the impugned order (Annexure 'B') dated 14-1-1972. This averment is fully borne out by the return filed on behalf of respondents Nos. 1, 2 and 4 and copies of two standing orders which are Annexures to this return. In the first standing order passed on 8-12-1971, respondent No. 2 and only been authorised to hear appeals of Patiala and Jullundur Divisions arising under the Act. This standing order was replaced by another standing order bearing even number and date. The second standing order does not bear any date of issue and it is only from the return that we find that the earlier standing order dated 8-12-1971 had been substituted by the later standing order on 2-2-1972, that is to say more than fortnight after the passing of the impugned order. Respondent No. 2 had, therefore, been empowered to hear revision petitions under Section 69 of the Act by a standing order which was passed on 2-2-1972. The reference to the date of the original order which was substituted by this second standing order may suggest that the intention was to give retrospective effect to the later standing order.

4. These standing orders have been passed under the Rules of Business of the Punjab Government. These Rules are known as Business of the Punjab Government (Allocation) Rules, 1966 framed under Article 166 of the Constitution of India. The question is whether a standing order of this type could be given retrospective effect to validate orders which were without jurisdiction on the date on which these were passed. Shri Khoji, the learned counsel for the petitioner, cites in this connection a Division Bench ruling of the Assam High Court in Dhananjoy Das v. Chairman, Appellate Board, AIR 1961 Assam 56. That was a case under Section 44 of the Motor Vehicles Act with regard to the appointment of the State Transport Authority. The orders of the State Government were not authenticated as required by Article 166 of the Constitution of India. While dealing with the effect of such an omission, the Hon'ble Judges were pleased to observe as follows:--

'The State Transport Authority should be constituted by the State Government and the constitution should be notified in the official gazette. An order constituting State Transport Authority can be regarded as an order by the State Government if has been passed by the Governor or any officer who has been delegated the power under the business rules framed by the Governor in the exercise of his powers under Article 166(3) of the Constitution. The order has also to be expressed and to be taken in the name of the Governor and properly authenticated in the manner laid down in Article 166. A subsequent authorisation to the officer to authenticate will not retrospectively make the earlier order as one properly authenticated.

The only consequence of failure to comply with the above two requirements is that the fact whether any such order has or has not been passed by the Governor or the Government is examination by the Court and the immunity from being called in question in a Court of law which attaches to an order or instrument properly authenticated and expressed in the name of the Governor is not available to such orders.'

5. While making these observations, the Hon'ble Judges had relied on some rulings of the Federal Court and the Supreme Court of India. No retrospective effect could, therefore, be given to the standing order passed on 2-2-1972 to validate the impugned order (Annexure 'B') dated 14-1-1972 of respondent No. 2 which was without jurisdiction on the date on which it was passed.

6. Shri Gupta, who appears for the State of Punjab, has relied on Section 29 of the Act in support of his argument that the impugned order of respondent No. 2 is not invalidated because of the defect in jurisdiction. Section 29 of the Act rules as follows:--

'29. Acts of co-operative societies not to be invalidated by certain defects:--No act of a co-operative society or any committee or of any officer shall be deemed to be invalid by reason only of the existence to any defect in procedure or in the constitution of the society or of the committee or in the appointment or election of an officer or on the ground that such officer was disqualified for his appointment.'

7. This section is of no avail to the respondents because the word 'officer' has been defined in clause (h) of Section 2 of the Act as follows:--

'2(h) 'officer' means the president, vice-president, chairman, managing director, secretary, manager, member of committee, treasurer, liquidator, administrator and includes any other person empowered under the rules or the bye-laws to give directions in regard to the business of a co-operative society.'

8. Shri Gupta concedes that respondent No. 2 is not an 'officer' as defined above. Where the language of the statute is clear enough, we have not to start surmising as to what could be the real intentions of the Legislature.

9. In view of the Division Bench ruling of the Assam High Court in Dhananjoy Das's case AIR 1961 Assam 56(supra), the defect in the jurisdiction of respondent No. 2 on the date on which he passed the impugned order cannot be cured by giving retrospective effect to a standing order passed more than a fortnight later. The impugned order (Annexure 'B') is liable to be quashed for want of jurisdiction.

10. I, therefore, allow this writ petition and quash the impugned order. The revision application filed by some of the respondents under Section 69 of the Act should be decided afresh by an officer or authority duly empowered in that behalf in accordance with law. Parties shall bear their own costs.

11. Writ petition allowed.


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