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M.S. Sambamurti Sastriar and ors. Vs. the Deputy Registrar of Co-operative Societies, Ranipet and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 790 of 1969
Judge
Reported inAIR1971Mad343
ActsMadras Co-operative Societies Act, 1961 - Sections 2, 3, 12(1), 65, 71, 71(1), 95, 96(1), 96(2), 96(3) and 96(4); Constitution of India - Article 226; Madras Buildings (Lease and Rent Control) Act, 1946
AppellantM.S. Sambamurti Sastriar and ors.
RespondentThe Deputy Registrar of Co-operative Societies, Ranipet and ors.
Cases ReferredN. K. Dharmadas v. State Transport
Excerpt:
.....for fresh disposal challenged - tribunal empowered to issue any order for effective disposal of appeal - tribunal empowered to remand matter back to deputy registrar for fresh disposal after setting aside impugned order - held, order of remand passed by tribunal does not require interference. - - in this case there is nothing contrary to such an implication, provided for expressly in the statute, but, on the other hand, the widest terms in which the appellate jurisdiction has been conferred on the appellate authority will clearly show that it has all the powers and attributes of the appellate authority and can pass all orders as are considered to be incidental or necessary to the effective exercise of that appellate jurisdiction. the reasoning of the learned judges of the kerala..........on the merits with regard to the liability of the petitioners herein, the second respondent tribunal remanded the matter to the deputy registrar of co-operative societies, ranipet, north arcot district, for fresh disposal. it is to quash this order of the second respondent that the present writ petition under art. 226 of the constitution has been filed.2. mr. k. parasaran, the learned counsel for the petitioners in this writ petition, raised two contentions in support of the writ petition. the first contention is that the second respondent tribunal had no jurisdiction whatever to remand the matter for fresh consideration by the deputy registrar and that the second respondent tribunal should have disposed of the matter finally itself. the second contention is that under section 71.....
Judgment:
ORDER

1. The first petitioner is the Secretary, the second petitioner is the Assistant Secretary, the third Petitioner is the President, the fourth petitioner is the Vice-President, and the fifth petitioner is a Director of the Arni Co-operative Stores, Arni. Proceedings were taken under Section 71 of the Madras Co-operative Societies Act. Madras Act 53 of 1961 (hereinafter referred to as the Act) for surcharging these persons. The Deputy Registrar of Co-operative Societies, Ranipet, by his order dated 9-7-1966 directed the various petitioner herein to restore a sum of Rs. 60,634-77 jointly and severally to the assets of the Arni Co-operative Stores, Arni, by way of compensation under the said section. Against this order of the Deputy Registrar, the petitioners herein preferred appeals to the second respondent herein, namely, the Appellate Tribunal, constituted under S. 95 of the Act. That Tribunal, by an order dated 24th September, 1968, set aside the order of the Deputy Registrar and remanded the matter to him for fresh consideration. The ground on which the Tribunal set aside the order was that a copy of the report of the Enquiry Officer under Section 65 of the Act should have been made available to the petitioners herein, and that the conclusion of the Deputy Registrar that the petitioners herein had admitted their liability in respect of the amounts in question was an unwarranted one. Hence, without expressing any opinion on the merits with regard to the liability of the petitioners herein, the second respondent Tribunal remanded the matter to the Deputy Registrar of Co-operative Societies, Ranipet, North Arcot District, for fresh disposal. It is to quash this order of the second respondent that the present writ petition under Art. 226 of the Constitution has been filed.

2. Mr. K. Parasaran, the learned counsel for the petitioners in this writ petition, raised two contentions in support of the writ petition. The first contention is that the second respondent Tribunal had no jurisdiction whatever to remand the matter for fresh consideration by the Deputy Registrar and that the second respondent Tribunal should have disposed of the matter finally itself. The second contention is that under Section 71 of the Act, the officer competent to pass an order of surcharges is the Registrar of Co-operative Societies for the State of Madras, and not the Deputy Registrar. I shall now consider these contentions.

3. It is easier to dispose of the second contention first. As far as the Act is concerned, the term 'Registrar' is defined in clause (10) of Section 2 as follows:--

' 'Registrar' means a person appointed to perform the duties of a Registrar of Co-operative Societies under this Act, and includes a person on whom all or any of the powers of a Registrar under this Act have been conferred under Section 3.'

Section 3 states:

'The Government may appoint a person to be Registrar of Co-operative Societies for the State of Madras or any portion of it and may by general or special order, confer on any other persons all or any of the powers of a Registrar under this Act.'

4. Thus any officer on whom the powers of a Registrar have been conferred by the Government is a Registrar for the purpose of this Act. It is not denied before me that the powers exercisable under Section 71 of the Act have been conferred on the Deputy Registrar on Co-operative Societies, Ranipet, North Arcot Dist. But the argument of Mr. Parasaran is based upon the word 'himself' occurring in Section 71 of the Act. S. 71(1) states-

'Where in the course of an audit under Section 64 or an enquiry under Section 65 or an inspection under Section 66 or Section 67 or the winding up of a society, it appears that any person who is or was entrusted with the organisation or management of the society or any past or present officer or servant of the society has misappropriated or fraudulently retained any money or other property or been guilty of breach of trust in relation to the society or has caused any deficiency in the assets of the society by breach of trust or willful negligence or has made any payment contrary to this Act, the rules or the by-laws, the Registrar himself, or any person specially authorised by him in this behalf, of his own motion or on the application of the committee, liquidator or any creditor or contributory may enquire into.'

5. Mr. Parasaran relies upon the expression 'himself' and contends that the expression 'Registrar himself' would indicate that the Registrar contemplated by this section is the Registrar of Co-operative Societies for the State of Madras and not the Deputy Registrar. I am unable to see any substance in this contention. Once the powers under S. 71 of the Act have been validly conferred by the Government on the Deputy Registrar, certainly the Deputy Registrar becomes the Registrar for the exercise of those powers under Section 71. The use of the expression 'himself' is not inconsistent with this construction, because even when the power has been conferred on the Deputy Registrar and therefore he becomes the Registrar for the purpose of Section 71(1), the section merely contemplates that it is open to the Deputy Registrar to authorise another person to enquire into the conduct. Therefore, the use of the expression 'himself' in Section 71(1) does not in any way militate against the construction that the Deputy Registrar, on whom the powers under Section 71 have been conferred by the Government, becomes a Registrar for the purpose of Section 71(1). Hence there is no substance in the second of the contentions of the learned counsel for the petitioner, and I reject the same.

6. As far as the first contention is concerned, reliance is placed only on sub-sections (4) and (6) of Section 96 of the Act. Section 96 of the Act deals with appeals. Section 96(1) deals with appeals to the Tribunal, while Section 96(2) deals with appeals to the Registrar of Co-operative Societies for the State of Madras or to the Government. Sub-section (3) of the section deals with the limitation within which the appeal should be preferred. Sub-section (4) is as follows-

'In disposing of an appeal under this section, the appellate authority may, after giving the parties an opportunity of making their representations, pass such orders thereon as the appellate authority may deem fit.'

Sub-section (6) states-

'The appellate authority may pass such interlocutory orders pending the decision on the appeal as the appellate authority may deem fit.'

Basing himself upon these two sub-sections, Mr. Parasaran contends that, in so far as the sub-section (6) expressly deals with the power of the appellate authority to pass interlocutory orders, it must be presumed that the general power conferred by sub-section (4) does not include the power of remand and that, if the power of remand is to be attributed to the appellate authority such a power should have been expressly conferred upon the appellate authority, just as the power to pass interim orders has been conferred. I am unable to accept this contention for more than one reason. It is sub-section (4) that deals with the scope of the orders that the appellate authority may pass on the appeal. That sub-section does not impose any restriction whatever on the nature of the order which the appellate authority can pass in respect of an appeal that is preferred before it. It is an ordinary rule of construction that, where a statute confers a jurisdiction on an authority, that jurisdiction must be deemed to include and imply all powers that are necessary or incidental to the effective exercise of the jurisdiction conferred on the authority, unless there is anything contrary expressly provided for in the statute itself. In this case there is nothing contrary to such an implication, provided for expressly in the statute, but, on the other hand, the widest terms in which the appellate jurisdiction has been conferred on the appellate authority will clearly show that it has all the powers and attributes of the appellate authority and can pass all orders as are considered to be incidental or necessary to the effective exercise of that appellate jurisdiction.

7. Mr. Parasaran in this context relied on the decision of a Bench of this Court in C. M. P. No. 6144 of 1948, D/- 25-1-1949 (Mad). That was a case dealing with the power of remand of the appellate authority constituted under the Madras Buildings (Lease and Rent Control) Act (Madras Act XV of 1946). Section 12(1) of that Act provided for an appeal against the order passed by the Controller and sub-section (3) of that section defined the powers of the appellate authority in the following terms:

'The appellate authority shall send for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further enquiry as he thinks fit either personally or through the Controller, shall decided the appeal.'

It is with reference to this specific language of the power of the appellate authority the question that arose for consideration before the Bench was whether the appellate authority which was vested with such power had the power to remand. The Bench of this court came to the conclusion that, in view of the restricted provision contained in the statute, in particular that the appellate authority can make such further enquiry as he thinks fit and that he must decide the appeal, such appellate authority had no power to remand. The learned Judges expressly left open the question whether every appellate authority irrespective of the terms in which the appellate power has been conferred can be said to have or not to have the power of remand. This is what the learned Judges had to say in this matter:

'It is not necessary to decide the larger question whether, when the Legislature constitutes an appellate authority, be it an officer or tribunal or court, under a special statue, without defining in any manner the powers which are generally possessed by the appellate courts in the hierarchy of civil and criminal courts of the land vest in the appellate authority designated by that special statue. In this Act, sub-section (3) of Section 12 defines in clear terms the powers of the appellate authority. The appellate authority has got the power to make such further enquiry as it thinks fit before deciding the appeal. This enquiry, it can do, either personally or through the Controller. But after such enquiry the Controller. But after such enquiry the appellate authority is bound to decide the appeal. it is not enough if the appellate authority merely disposes of the appeal; he is bound to decide the appeal. If in its opinion the merely disposes of the appeal; its opinion the merely disposes of the appeal; he is bound to decide the appeal. If in its opinion the material on records is not sufficient, or if it thinks that the enquiry made by the Controller is not sufficient, it can make further enquiry personally or through the controller; but eventually the appellate authority shall decide the appeal. Having regard to the language of this sub-section we do not think that it would be permissible, to import inherent powers which may be possessed by the ordinary appellate courts of the land and invest the appellate authority under the special Act with all such powers. No authority has been cited to us in which it has been held that in spite of such restrictive language defining the powers of the authority has been cited to us in which it has been held that in spite of such restrictive language defining the powers of the authority as we have in sub-section (3) of Section 12 of this Act, the appellate authority will have additional powers not mentioned in the enactment.'

8. In the present case there is no restrictive language whatever, defining the powers of the appellate authority and, consequently, the decision relied upon by Mr. Parasaran, has no application to the present case.

9. Another decision on which reliance was placed by Mr. Parasaran is that of Kailasam J. in Subbiah. v. Asst. Settlement Officer, Madurai, : (1969)2MLJ642 . That case related to the power of remand which the Director of Settlement exercised under the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act 1948. The learned Judge in that case pointed out that under Section 5(2) of that Act the Director of Settlement was empowered to cancel o r revise any of the orders or proceedings of the Settlement was empowered to cancel or revise any of the orders or proceedings of the settlement Officer other than those in respect of which an appeal lay to the Tribunal. The learned Judge came to the conclusion that, as the Civil Procedure Code was not applicable to proceedings before the Director of Settlements and in view of the express language of Section 5(2) of that Act enabling the Director of Settlement only to cancel or revise the orders of the Settlement Officer; the Director had no power of remand. I am of the view that this decision also has no relevancy to the present case, in view of the language of Section 96(4) of the Act.

10. On the other hand, it is contended by the learned counsel for the third respondent that the appellate authority has the power to remand the matter as incidental to the appellate power itself. For this purpose reliance was placed upon the decision of the Supreme Court in Income-tax Officer v. Md. Kunhi, Air 1969 SC 430. The question involved in that case was whether the Income-tax appellate Tribunal had the power to order interim stay of collection of tax. The Supreme Court upheld such a power and was of the view that an express grant of statutory power carried with it by necessary implication the authority to use all reasonable means to make such grant effective. Even though the decision of the Supreme Court is not directly in point, still the reasoning behind the judgment is applicable to the present case, since, as I pointed out already, the grant of statutory power carries with it by implication all powers which are necessary for an effective exercise of that statutory power.

11. On the other hand, there are express decisions with regard to the power of the appellate authority under the Motor Vehicles Act, Section 64 of the Motor Vehicles Act, 1939, deals with appeals against orders and that section merely states, that a person aggrieved against certain orders may within the prescribed time and in the prescribed manner appeal to the prescribed authority who shall give such person and the original authority who shall give such person and the original authority an opportunity of being heard. There is absolutely no provision whatever in the Act as to the nature of the order which the appellate authority can pass. Notwithstanding this, this court has held that the appellate authority has necessarily the power to remand merely as a power incidental to the exercise of the appellate power. The Kerala High Court in N. K. Dharmadas v. State Transport to Appellate Tribunal : AIR1963Ker73 (FB). The learned Judges took the view, relying on the statement contained I Maxwell's Interpretation of Statutes, that where an Act conferred a jurisdiction, it impliedly also granted the power of doing all such acts or employing such means as were essentially necessary to its execution, and came to the conclusion that the appellate authority under the Motor Vehicles Act had the power of remand. The reasoning of the learned Judges of the Kerala High Court with clearly apply to the present case. I am of the view that in view of the very wide language in which the power to pass orders has been conferred on the appellate authority in the present case, and in the absence of any restrictive language with reference to that appellate jurisdiction it must be held that the second respondent-tribunal as appellate authority did have the power to make the remand in the present case.

12. Mr. Vanamamalai also drew my attention to Rule 91 of the Rules framed under the Act, in which it is stated that the proceedings of the tribunal shall be governed, as far as practicable, by the provisions of the Code of Civil Procedure, 1908, and contended that with reference to this provision as well the appellate authority must be deemed to have the power of remand. This submission derives support from the observations in the judgment of the Kerala High Court referred to already. Before the learned Judges, it was suggested that the absence of a provision making the Code of Civil Procedure 1908, applicable to the proceedings indicated that the power of remand was not intended to be granted. The learned Judges stated that, if the power of remand was implicit in an appellate jurisdiction, on the ground that it was incidental to and essential for the proper exercise of that jurisdiction, the fact that the Code of Civil Procedure 1908, had not been made applicable could have no reaction on the existence or otherwise of that power, and that it might be that if some of the provisions of the Code were made applicable to a Tribunal and others left out, a contention was possible that the provisions left out had been deliberately exclude, but such was not the case before them. On the other hand, here is a case where, under Rule 91 the proceedings before the trial are to be governed, as far as practicable, by the provisions of the Code of Civil Procedure, with the result that no part of the Code were made applicable to a Tribunal and others left out, a contention was possible that the provisions left out had been deliberately excluded, but such was not the case before them. On the other hand, here is a case where, under Rule 91 the proceedings before the trial are to be governed, as far as practicable, by the provisions of the Code of Civil Procedure, with the result that no part of the Code of Civil Procedure has been excluded with reference to the jurisdiction of the Tribunal in the present case.

13. For all these reasons, I hold that the order of remand passed by the second respondent Tribunal was within its jurisdiction, and does not call for any interference. Hence, the writ petition fails and is dismissed. There will be no order as to costs.

14. Petition dismissed.


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