1. This is a petition under Art. 227 of the Constitution of India at the instance of the Secretary of a service society who was the original defendant due No. 4 in the Court of Registrar's Nominee in Arbitration Case No. 88 of 1970 filed by the Society against the President, Sureties and the Secretary thereof for recovery of Rs. 1,338-50 paise against the order of the Gujarat State Co-operative Tribunal dismissing the appeal of the petitioner from the order of the Registrar's Nominee in the said suit holding the petitioner solely liable for the amount and ordering him to pay the same on the ground that the appeal was clearly time barred.
2. Mr. Joshi, learned Advocate, appearing for the petitioner advanced two contentions in support of this petition,decision They are,-
1.The Tribunal committed an error apparent on the face of the record in overlooking the fact disclosed from the upon record of the suit on the file of the Court of Registrar's Nominee that the notice of the date of pronouncement of the decision was not given to the petitioner.
2. in any case, the tribunal in hold be beyond the period of be reduced to writing. Such a decision limitation failed to exercise the jurisdiction inasmuch as it lost sight of an admitted position that the decision of the Registrar's Nominee was not communicated to the petitioner by registered post as prescribed in CL (b) of sub-r. (4) of R. 41, of the Gujarat Co-operative Societies Rules 1965.
3. Now so far as the first contention is concerned, I do not think that Mr. Joshi was on firm ground,because the Tribunal has found as a matter Of fact an appreciation of the record and proceedings of the suit that the petitioner was present on the last date when the evidence was closed and the arguments were heard, and that the Nominee fixed up the date of pronouncement of the decision. I have also called for the record and I have tried to satisfy myself whether the finding was warranted from the record and proceedings. The date on which the evidence was closed by the parties and the arguments were heard by the was January 17, 1971. The proceedings of the said date read as under:
'The matter is fixed today. The deposition of Shantidas Madhavdas recorded at Ex. 26. The evidence of the parties is over. No additional evidence is to be adduced by any Party. Hence the arguments heard. Adjourned on 24th January, 1971 for award.'
In view of these proceedings, it cannot be urged justifiably much less established that the Petitioner was not given notice of the date for the pronouncement of the decision.The first contention of Mr. Joshi, therefore, should be rejected.
4. However, Mr. Joshi was on firm ground when he contended that the Tribunal failed to exercise its jurisdiction in not appreciating that the Nominee was under an obligation to communicate the decision by registered post to any party which may be absent on the date so fixed for the pronouncement of the decision.The material sub-rules of R. 41 so far as relevant for purposes of this petition provide as under:
'41. Procedure of hearing and (1) The adjudicating authority shall record a brief note in English or in Gujarati language of the evidence of the parties and witnesses who attend and the evidence so recorded and upon consideration of any documentary evidence produced by either side, a decision shall be given in accordance with justice,equity and good conscience and it shall be given in open Court either at once or on some future date of which due notice shall be given to the parties.
(2) xxx xxx xxx
(3) xxx xxx xxx
(4) The decision shall be communicated to the parties by
(a)pronouncement of the award; or
(b)registered post to any party which may be absent on such date.
(5) xxx xxx xxx.
The net result of this Rule which provides a procedure while giving the decision is that after the evidence is over, the Nominee is to give the decision and he may give the same in open Court either at once or on some future date of which due notice would be given to the parties. If the Nominee does not pronounce the decision at once in the Court and a future date is fixed for pronouncing the decision, the decision is deemed to be communicated to the parties either by pronouncement of the award or by registered post to any party Which may. be absent on such date. In other words, sub-r, (4) of R. 41 prescribes an obligation on the Nominee to communicate the decision to the parties. That communication can be made by pronouncing the award if both the parties are present or by sending it by registered post to the partv which may be absent when the award is pronounced. The Tribunal had lost sight of this statutory provision while determining the question of limitation in the appeal.The Nominee fixed 24 th jan1971 as the date for pronouncing the decision. On that date he pronounced his judgment and award. It is a common ground that the petitioner was absent on that date in the Court. The Nominee held the petitioner to be solely liable for the decretal amount and exonerated other defendants. On plain reading of R. 41 (4), the petitioner cannot be fastened with the knowledge of the decision contained in the award. The period of limitation in filing the appeal against such decision under S. 102 of the Gujarat Co-operative Societies Act would run, therefore, from the actual date of the knowledge of the said decision. Mr. Shah for the respondent, however, made a strenuous attempt to impress upon me that the period of limitation prescribed under S. 102 for filing appeal by an aggrieved party against the decision of a Nominee is 60 days from the date of the decision and sub-r. (4) only prescribes the obligation for communication and would not have a bearing on the question as to when the limitation will commence to run. I am afraid that this is a contention which cannot be sustained at all. In Raja Harish Chandra Rai Singh v. The Deputy Land Acquisition Officer, AIR 1961 SC 1500, the Supreme Court was required to consider as to what meaning should be ascribed to the term 'date of award' under S. 18(2)(b) of the Land Acquisition Act for the purposes of computation of the limitation for making an application for reference under S. 18. The Supreme Court in that case held that where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned, and therefore the knowledge of the party affected by the award made by the Collector under S. 12 of the Land Acquisition Act, 1894 either actual or constructive is an essential requirement of fair play and natural justice. It is further held that the expression 'the date of the award' used in proviso (b) to Section 18(2) of the said Act must mean the date when the award is either communicated to the party or is known by him either actually or constructively and it will be unreasonable to construe the words from the date of the Collector's award used in the proviso to S. 18 in a literal or mechanical way. Mr. Shah learned Advocate for the respondents made an attempt to persuade me that the petitioner must be held to have constructive knowledge of the award because due notice under sub-r. (1) of R. 41 for pronouncement of the decision was given to him. I am afraid that this contention would not be open to Mr. Shah in view of the obligatory provision cont sub-r. (4). in my opinion, therefore, r. Joshi was perfectly justified in making the grievance that the Tribunal has failed to exercise the jurisdiction In summarily rejecting the appeal without as certaining the facts by issuing notice -on the respondents and allowing the parties to put in the evidence in support of the respective versions.
5. The result is that this petition Is allowed and the order of the Co-operative 'Tribunal dismissing the appeal of the petitioner summarily is quashed and set aside by issuance of a writ of certiorari and the matter is ordered to be sent back to the Gujarat State Co-operative Tribunal for finding out when the petitioner got the knowledge of the order of the Nominee after giving an opportunity to Respondent to show cause against the condition of delay. Rule is made absolute accordingly with no order as to costs.
6. Petition allowed.