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Nehru Motor Transport Co-operative Society Ltd., Jodhpur Vs. the Deputy Registrar, Co-operative Societies, Jodhpur and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1829 of 1976
Judge
Reported inAIR1977Raj233; 1977()WLN84
ActsConstitution of India - Article 226; Rajasthan Co-operative Societies Act, 1965 - Sections 96, 97 and 123; Evidence Act, 1872 - Sections 115
AppellantNehru Motor Transport Co-operative Society Ltd., Jodhpur
RespondentThe Deputy Registrar, Co-operative Societies, Jodhpur and ors.
Appellant Advocate M. Mridul, Adv.
Respondent Advocate K.N. Joshi, Adv.
DispositionPetition dismissed
Cases ReferredSalmon v. Duncombe.
Excerpt:
.....of the stipulated period, the petitioner without any objection continued to participate in the proceedings before the arbitrator. thus, it must, be presumed that the petitioner by his conduct acquiesced in the proceedings before the arbitrator. it must be premed to have consented to an extension of time. the validity of the award cannot, therefore, be challenged.;writ dismissed. - - admittedly, some of the amounts claimed belonged to others who were not members of the society and, therefore, the award was nullity, (iii) the arbitrator having failed to render the award within the period of three months as fixed in the letter of appointment ex. 5. it is well settled that a question not raised before the tribunal cannot be taken for the first time in proceedings under art. that rule..........case where there was a dispute between the society and non-members, but it was a dispute between the society and a member. the matter, therefore, clearly fell within the purview of section 75 of the act. the arbitrator, therefore, had jurisdiction to make the award. the second contention must, therefore, also fail.13. it is true that the deputy registrar, while appointing the arbitrator, had directed him to make an award within a period of three months. after the expiry of the stipulated period, the petitioner without any objection continued, to participate in the proceedings before the arbitrator. thus, it must be presumed that the petitioner by his conduct acquiesced in the proceedings before the arbitrator. it must be presumed to have consented to an extension of time. the validity.....
Judgment:
ORDER

A.P. Sen, Actg. C.J.

1. This writ petition by Ufa. Nehru Motor Transport Co-operative Society Ltd., Jodhpur, is directed against an order of the Rajasthan State Co-operative Tribunal, Rajasthan, Jaipur, dated 29-7-1976, rejecting an appeal preferred by it under Section 123 of the Rajasthan Cooperative Societies Act, 1965 (hereinafter referred to as 'the Act') on the ground that it was not maintainable, and that dated 12-11-1976 dismissing an application for review preferred by it.

2. Respondent No. 4 Ramchandra, who is a member of the petitioner society, raised a dispute under Section 75 of the Act claiming that a sum of Rupees 16,143.50 p. was due to him from the Society. In his statement of claim, the respondent No. 4 asserted that various sums were deposited by him with the Society in his own name and in the name of his relations. In its written statement, there is an admission by the Society of these allegations, though it pleaded that the claim having been preferred beyond the period of limitation prescribed therefor, the claim should not be entertained. The sole arbitrator by his award dated 5-1-1976 decreed the claim. The Rajasthan State Co-operative Tribunal, Jaipur, by its order dated 29-7-1976 dismissed the appeal filed by the petitioner holding that the award being by consent of the parties, the appeal was not maintainable. Thereupon, the petitioner preferred a review on the ground that Explanation to Section 123 incorporates by reference Section 97 of the Code of Civil Procedure and not Section 96 and, therefore, Section 96(3) of the Code was not applicable, so as to preclude the appeal. The Tribunal by its order dated 12-11-1976, however, rejected the contention.

3. The order of the Tribunal was assailed on several grounds, namely, (i) the Court is not entitled to read words into a section and, therefore, the Tribunal was in error in reading Section 96 in Section 123, (ii) the jurisdiction of the Arbitrator under Section 75 (1) (b) is confined to settling disputes between a member and Society. Admittedly, some of the amounts claimed belonged to others who were not members of the Society and, therefore, the award was nullity, (iii) the Arbitrator having failed to render the award within the period of three months as fixed in the letter of appointment Ex. 13, the award was illegal and void and, therefore, cannot be acted upon. There is, in my view, no substance in any of these contentions.

4. None of these points were ever raised at any stage of the proceedings before the Tribunal or the Arbitrator.

5. It is well settled that a question not raised before the Tribunal cannot be taken for the first time in proceedings under Art. 226 of the Constitution. In the matter of issue of a writ of certiorari, the High Court exercises a special jurisdiction and not ordinary jurisdiction and that a question of jurisdiction cannot be allowed to be raised on a petition when no objection to the jurisdiction had been taken before the Tribunal whose order or proceedings are being challenged.

6. In the case of the King v. Williams; Ex parte Philips (1914) 1 KB 608, where a man applied for a writ of certiorari to quash an order made by Justices on the ground that one of the Justices was an interested party, it was held that the applicant was not entitled to the writ ex debito justitiae because knowing the disqualification he had chosen to stand by during the hearing before the Justice without taking any objection. Channell, J., pointed out:--

'No objection was taken to the jurisdiction of the Court, below at the hearing before that Court; that being so, it is the rule of this Court not to grant a writ of certiorari except upon an affidavit which negatives knowledge on the part of the applicant when he was before the Court below of the facts on which he bases his objection. That rule is established on good grounds. It applies equally whether the objection is on grounds which make the act of the justices voidable or void.'

He then observed at page 614 :--

'A party may by his conduct preclude himself from claiming the writ ex debito justitiae, no matter whether the proceedings which he seeks to quash are void or voidable. If they are void, it is true that no conduct of his will validate them; but such consideration do not affect the principles on which the Court acts in granting or refusing the writ of certiorari.

This special remedy will not be granted ex debito justitiae to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relies to impugn them. By failing so to do a party grieved precludes himself from the right to have the writ ex debito justitiae and reduces his position to that of one of the public having no particular interest in the matter. To such a one the granting of the writ is discretionary.'

7. This case and other English cases in the same line have been followed by many High Courts in India: Gandhinagar Motor Transport Society v. State of Bombay, AIR 1954 Bom 202, Ambaram Kaluram Kulmi v. Gumansingh Ramji, AIR 1957 Madh Pra 58, Prem Lata Agarwal v. Lakshman Prasad Gupta, AIR 1970 SC 1525 and Bachan Singh v. Gauri Shankar Agarwal, AIR 1971 SC 1531. The decisions in Raghunandanlal v. State of Rajasthan, AIR 1952 Raj 184, Dholpur Co-operative Transport and Multipurpose Union Ltd. v. Appellate Authority, AIR 1953 Raj 193, Barkatali v. Custodian General of Evacuee Property of India, 1955 Raj LW 95 : (AIR 1954 Raj 214) and Badridass Kanhaiyalal v. Appellate Tribunal of State Transport Authority, Rajasthan, AIR 1960 Raj 105 are distinguishable.

8. Even on merits, the petitioner has no case. It is true that the Court cannot read a word into a section unless it is absolutely necessary to do so. It is said that the Court cannot add or mend and, by construction make up deficiencies which are left there. It is, therefore, urged that it would be contrary to all rules of construction to read Section 96 in place of Section 97, in Section 123 of the Act. In support of the contention, reliance is placed on the decision of the Supreme Court in Kalinakhya Bysack v. Shyam Sunder Haldar, AIR 1953 SC 148.

9. There can be no dispute with the proposition that the intention of the legislature has primarily to be gathered from the language used. A construction which requires for its support, addition or substitution of words or it relates in rejection of words as meaningless, has to be avoided. Thus in Nalinakhya By sack v. Shyam Sundar Haldar AIR 1953 SC 148 (supra) their Lordships held that phraseology used in a section, cannot be altered. It is not competent to any Court to proceed upon the assumption that the Legislature has made a mistake. The Court cannot, therefore, add Legislature's defective phrasing of an Act or add and amend or, toy construction, make up deficiencies which are left in the Act. Even where there is a casus omissus, it is for others than the Courts to remedy the defect.

10. But that does not imply that the Court can overlook what is nothing but a printing error. It is well settled that where the literal meaning of the words used in a section would manifestly defeat its object by making it meaningless and ineffective, it is legitimate and even necessary to adopt the rule of literal construction so as to give it a meaning and make it effective and operative. See: Food Controller v. Cork, 1923 All ER 463; Ramkissendas Dhanuka v. Satyacharan Law, AIR 1950 PC 81; Raj Krushna Bose v. Vinod Kanungo, AIR 1954 SC 202; Ramaswamy Nadar v. State of Madras, AIR 1958 SC 56; Siraj-ul-Haq v. Sunni Central Board of Waqf, U. P., AIR 1959 SC 198 and Champa Kumari Singhi v. Member, Board of Revenue, West Bengal, AIR 1970 SC 1108.

11. Explanation to Section 123 of the Act reads:

'Explanation.-- The Tribunal hearing an appeal under this Act shall exercise all the powers conferred upon an appellate Court by Section 97 and Order XLI in the First Schedule to the Code of Civil Procedure, 1908.'

The words 'Section 97' in Section 123 must, therefore, be taken to mean 'Section 96', otherwise the provision would become nugatory, The Tribunal was, therefore, right in adopting that construction which was more in consonance with a reason or justice. At times the intention of the legislature is clear but the unskilfulness of draftsman in introducing certain words in the statute results in apparent ineffectiveness of the language. Since courts strongly lean against reducing a statute to a futility, it is permissible in such cases to reject the surplus words to make the statute effective and workable: Salmon v. Duncombe, (1886) 11 AC 627 (PC). Craieg on 'Statute Law', 6th Ed., p, 30, observes,--

'Ignorance is more often displayed in private members' Bills than in those originating in government departments. It is, however, a very serious matter to hold, that where the main object of a statute is clear, it shall be reduced to a nullity by the draftsman's unskilfulness or ignorance of law. It may be necessary for a court of justice to come to that conclusion, but their Lordships hold that nothing can justify it except necessity, or the absolute intractability of the language used.'

Again, at pp. 106-7,

'It is a canon of construction that, if it be possible, effect must be given to every word of an Act of Parliament or other document, but that if there be a word or a phrase therein to which no sensible meaning can be given, it must be eliminated'.

X X XXX'The question at times arises whether, admitting a statute to have a certain intention, it must, through defective drafting or faulty expression, fail of its intended effect or whether necessary alterations may be made by the court. The rule on this subject laid down in the Privy Council in Salmon v. Duncombe.'

The first contention, therefore, fails.

12. Respondent No. 4 Bamchandra in his claim asserts that the moneys standing to credit of several of his relations in the books of the Society, belong to him. In its written statement, the Society has admitted these allegations. There is on record a notice of demand served by respondent No. 4, claiming that the moneys which belong to him, were due and payable to him. In response to the notice, the Administrator appointed for the Society, executed a receipt in favour of the respondent No. 4, acknowledging its liability to pay the amounts to him. That is not all. There is also on record, an audit report showing that the amounts borrowed by the Society from the respondent No. 4, were still outstanding. It would thus be clear that these amounts, though standing in the name of others, i. e., the relations of the respondent No. 4, were, in fact, borrowed from him. This is, therefore, not a case where there was a dispute between the Society and non-members, but it was a dispute between the Society and a member. The matter, therefore, clearly fell within the purview of Section 75 of the Act. The Arbitrator, therefore, had jurisdiction to make the award. The second contention must, therefore, also fail.

13. It is true that the Deputy Registrar, while appointing the arbitrator, had directed him to make an award within a period of three months. After the expiry of the stipulated period, the petitioner without any objection continued, to participate in the proceedings before the arbitrator. Thus, it must be presumed that the petitioner by his conduct acquiesced in the proceedings before the Arbitrator. It must be presumed to have consented to an extension of time. The validity of the award cannot, therefore, be challenged.

14. The writ petition, therefore, fails and is dismissed. There shall be no order as to costs.


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