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Syamapada Banerjee Vs. Asst. Registrar, Co-operative Societies, Burdwan and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1076 (W) of 1961
Judge
Reported inAIR1964Cal190
ActsBengal Co-operative Societies Act, 1940 - Section 86
AppellantSyamapada Banerjee
RespondentAsst. Registrar, Co-operative Societies, Burdwan and ors.
Appellant AdvocateBalai Chandra Roy, Adv.
Respondent AdvocateN.C. Chakravorty and ;Usha Mukherjee, Advs. for Opposite Parties (No. 1 an 2) and ;Sudhis Chandra Acharya, Adv. for Opposite Party 8
DispositionPetition dismissed
Cases ReferredRayarappa v. Kelappa Kurup
Excerpt:
- .....any past or present officer, agent or servant or the liquidator of the society; or (b) a member, past member or person claiming through a member, past member or deceased member of the society; or (c) a surety of a member, past member or deceased member of the society, whether such surety is or is not a member of the society; or (d) any other co-operative society or the liquidator of such society.' the contention of the learned advocate on behalf of the applicant is that a 'dispute' in order to come within the ambit of section 86 must be a dispute one of the parties to which is a person mentioned in any of the clauses and the other party is a person mentioned in any of the other clause? of the section, and that a dispute as between the persons mentioned in the same clause, inter se,.....
Judgment:

D. Basu, J.

1. The point for determination-in this application under Article 226 is solely one of statutory interpretation, namely, that of Section 86 of the Bengal Co-operative Societies Act, 1912 (1940?).

2. The petitioner is an ex-Secretary of the Guskara Union Co-operative Agricultural Credit Society (Respondent 3) which is a society governed by the above-mentioned Act (hereinafter referred to as 'the Bengal Act'). A 'dispute' under Section 86 of the Bengal Act, being Dispute Suit No. 2111-B of 1960-61 has been instituted. Before the Asst. Registrar (Respondent No. 1) by the Society (Respondent 3), claiming to recover money alleged to have been defalcated by the Petitioner while acting as the Secretary of the Society jointly with another person, ex-Manager of the Society, (vide Ann. C) and the Asst. Registrar has issued an order of attachment before judgment, dated 19-7-61, under Section 125 of the Bengal Act (Ann. A). The petitioner has challenged the order of attachment as without jurisdiction and the proceedings as violating the principles of natural justice and asked for orders in the nature of mandamus and certiorari.

3. The various points averred in the Application and the counter-affidavits need not be traversed inasmuch as the only point urged before me at the hearing on behalf of the Applicant is that the proceedings in the Dispute Suit are without jurisdiction as the dispute between the Society and an ex-officer is not a 'dispute' as envisaged by Section 86 of the Bengal Act.

4. Section 86 of the Bengal Act runs as follows --

'Any dispute touching the business of a cooperative society (other than a dispute regarding disciplinary action taken by a society or its managing committee against a paid servant of the society) or of the liquidator of a society shall be referred to the Registrar if the parties thereto are among the following, namely:-

(a) the society, its managing committee, any past or present officer, agent or servant or the liquidator of the society; or

(b) a member, past member or person claiming through a member, past member or deceased member of the society; or

(c) a surety of a member, past member or deceased member of the society, whether such surety is or is not a member of the society; or

(d) any other co-operative society or the liquidator of such society.'

The contention of the learned Advocate on behalf of the Applicant is that a 'dispute' in order to come within the ambit of Section 86 must be a dispute one of the parties to which is a person mentioned in any of the clauses and the other party is a person mentioned in any of the other clause? of the section, and that a dispute as between the persons mentioned in the same clause, inter se, is not a 'dispute' within the purview of the section. In other words, a dispute between the society (Clause (a) ) and a member or ex-member of the society (Clause (b) ) will be governed by the section but a dispute between the society and an officer or ex-officer will be outside its scope because both these parties are mentioned in the same Clause (a).

5. I am unable to accept this contention, for a number of reasons :-

(a) Firstly, such a construction would go against the policy of the Act as is apparent from its various provisions.

There is a Central Act relating to Co-operative Societies, namely, Act II of 1912. Notwithstanding this, special Acts have been made in almost all States in order to make further provisions to the same end. While the Preamble to the Central Act says :

'Whereas it is expedient further to facilitate the formation of co-operative societies.........',

the Preamble to the Bengal Act says : --

'Whereas it is expedient to make further provision for the formation and working of cooperative societies, and for the promotion of thrift, self-help and mutual aid among persons of moderate means.....'

6. It is evident that the Bengal Act seeks to incorporate additional provisions for the better working of co-operative societies so that they may serve the poorer sections of the community to attain economic development through selfhelp. Such an institution cannot prosper unless there is some amount of freedom from outside interference, litigation in Courts of law and the like. Sections 86-87 of the Bengal Act, providing for an adjudication of certain disputes by the Registrar of Co-operative Societies, to the exclusion of the civil Courts, are among such provisions which Reek to confer a degree of domestic autonomy to the co-operative organisation.

7. A 'dispute' as defined in Section 2(j), 'means any matter capable of being the subject of civil litigation, and includes a claim in respect of any sum payable to or by a co-operative society, whether such claim be admitted or not.'

8. There is little doubt that these provisions of the Bengal Act seek to bar the jurisdiction of the civil Court, within the meaning of Section 9 of the C. P. Code. A poor men's society would be ruined if dragged into the civil Courts for the adjudication of disputes which arise out of the transaction of its own business and among persons-connected with that business, either as a member or officer or servant and the like, even though, such disputes arise because of facts revealed after they have ceased to be connected with the society. It is to save the society from such ruin that Sections 86 and 87 have been enacted, -- to set up a domestic tribunal for the settlement and adjudication of disputes of this nature, and the word 'touching the business of a co-operative society' in the opening words of Section 86 furnish the key to the policy or intention of the Legislature.

9. No doubt, a statute which seeks to oust the jurisdiction of the civil Courts has to be strictly construed, but no rule of statutory interpretation can be applied to arrive at a conclusion which would defeat the very object of a statute. It has been conceded by the learned Advocate on behalf of the Petitioner that a dispute between a Society and its member or ex-member would come within the purview of Section 86 (because the two parties to the dispute are specified in two different Clauses -- (a) and (b) ). But if that be the policy behind the section, it would be patently inconsistent to take the view that a dispute between the society and its officer or ex-officer, touching the business of the society, would not be included (because both are mentioned in the same Clause (a)) and would be left to litigation in the Courts, though a similar dispute with a member or an ex-member would be excluded from the jurisdiction of the Courts. It is also difficult to take the view that a dispute between two members of a society being (mentioned in the same clause (b) ) was intended to be excluded by the Legislature even though it related to the business of the society.

10. (b) There is intrinsic indication in the opening words of Section 86 that a dispute between two of the parties mentioned in the same clause would come within the domestic jurisdiction created by the section. For, the 'society' and its 'servant' are both specified in Clause (a). If any dispute between these two parties were excluded from the purview of Section 86, there was no need to specifically exclude a dispute regarding 'disciplinary action' against a servant, by inserting the words :

'other than a dispute regarding disciplinary action taken by a society ...... against a paid servant of the society'.

Learned Advocate for the petitioner suggests that the specific exclusion has been made only by way of abundant caution and that since the entire world of disputes between the society and its servants is intended to be excluded, it was not really necessary to specifically exclude one particular species of such disputes. But there is a maxim contrary to that of 'ex-abundanti cautela' namely, 'expressio uniuest exclusio alterius' which means that the express mention of a thing excludes things which are not mentioned, and whether the one or the other of the two maxims is to be applied is to be ascertained from the context of the enactment, bearing in mind the further principle that no words in a statute should be regarded as a surplusage unless no sensible meaning can possibly be given to them. In the section before me, the words 'other than a dispute regarding disciplinary action' is used to qualify the preceding expression 'any dispute touching the business of a co-operative society.' Nobody would contend that a dispute regarding disciplinary action taken by a society against its servant would not be a dispute 'touching the business of the society', inasmuch as a society would be entitled to take such action only if the servant has been guilty of some misconduct as a servant of the society and in course of his functions relating to the business of the society. Still the specific exclusion of such dispute has been made by the Legislature presumably on the ground that a disciplinary action is a penal or quasi-criminal proceeding which should not be tried by the domestic tribunal. The specific exclusion has been considered necessary simply because, otherwise, this species of dispute would have come within the ambit of Section 86, which result the Legislature did not consider to be desirable, having regard to the very nature of a disciplinary action. The maxim 'expressio unius' suggests that the specific exclusion of disciplinary action was resorted to because it was intended that all other disputes between a society and its servants touching the business of the society were to come within the purview of the section.

11. (c) The construction suggested on behalf of the Petitioner would also do violence to the word 'among' in the first part of the section. The words 'if the parties thereto are among thefollowing' suggest that the dispute may be between any two of the parties mentioned in the succeeding clauses, by permutation and combination.

12. If the construction suggested on behalf of the Petitioner had been the intention of the Legislature the word 'between' would have been more grammatical and apposite and the composition would also have needed an alteration to refer to a dispute between one party mentioned in any of the clauses and another party mentioned in any of the remaining clauses.

13 (d) We would arrive at the same conclusion as to the intention of the Legislature behind Section 86 if we look to the legislative precedents on the same subject. It is permissible, in interpreting ambiguous provisions in a statute, to refer to previous statutes, which are in pan materia (E. v. Loxdale, (1758) 1 Burr. 445), because a Legislature docs not necessarily act in a vacuum; on the other hand, it may be presumed to have the existing legislative practice in mind (C. P. and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938. In the matter of .

14. Special Acts relating to co-operative societies had been enacted in several Provinces prior to the Bengal Act, and it may be useful to refer to the provisions in Section 54 of the Bombay Cooperative Societies Act, 1925; Section 51 of the Madras Co-operative Societies Act, 1932 and Section 48 of the Bihar and Orissa Act of 1935, which are in pari materia:

(1) Section 54 of the Bombay Act provides: 'If any dispute touching the constitution or business of a society arises between members or past members of the society or persons claiming through a member or past member or between member or past members or persons so claiming and any officer, agent, or servant of the society past or present, or between the society or its committee, and any officer, agent, member or servant of the society past or present, it shall be referred to the Registrar for decision'.

(2) Section 51 of the Madras Act says: 'If any dispute touching the business of a registered society (other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society arises :

(c) between the society or its committee and any past committee, any officer, agent or servant, or any past officer, past agent or past servant, or the nominee, heirs or legal representatives of any deceased officer, deceased servant, of the society....'

(3) Section 48 of the Bihar and Orissa Act says: 'If any dispute touching the business of a registered society (other than a dispute regarding disciplinary action taken by the society or its managing committee against a paid servant of the society) arises :

'between the society or its managing committee and any past or present officer, agent or servant of the society.....' It is evident that under all the foregoing three precedents a dispute between a society and its officer, past or present, is a dispute over which the domestic tribunal has exclusive jurisdiction. It would require strong evidence to establish thatthe Bengal Act made a departure from this legislative policy which was so largely established.

15. (e) Learned Advocate for the Petitioner submits that the Bengal Act has evinced a contrary intention by resorting to three things -- (i) Clauses; (ii) semi-colons; and (iii) the conjunction'or'.

16. In my opinion, hone of these three standsas an insurmountable bar against the conclusion suggested by the cumulative effect of the considerations discussed by me so far. I shall take up the three things one by one:

(i) Firstly, urges the learned Advocate for the petitioner, since the parties have been grouped and aligned into different independent clauses, without affixing any preposition to each clause, it is not permissible to align parties enumerated in the same clause to constitute a dispute inter so for the purposes of the section, so as to nullify theclause division.

On this point, it has already been seen that the three legislative precedents offer two different drafting models;

1. The Bombay model dispenses with theclause division but practically divides the enumeration into three groups by using thrice the preposition 'between' before each of the groups.

2. The Madras and Bihar and Orissa draftsmen have, however, divided the enumeration into clauses, affixing the preposition 'between' at the beginning of each clause, so that it is not necessary to read one clause with another. Each clause, so arranged, exhaustively enumerates the disputes into as many categories as the clauses number, and it is not possible to crops the clause-barrier.

What the Bengal draftsman did was toeconomise the use of the preposition 'between' so many times by using the word 'among' at the beginning, to govern all the clauses, and to make at clear that the dispute may arise not only as between parties enumaterated in the different clauses but also as between the parties enumerated in thesame clause inter se. If so, it may well be asked, what was the need for resorting to the clause division. The answer is that the clause division has been suggested to the draftsman simply because the parties enumerated in the different clauses of Section 86 belong to different classes or categories. Thus, Clause (a) refers to the society, its officers and servants; Clause (b) refers to members of the society; Clause (c) refers to a surety, while Clause (d) refers to another society. Such a division was also suggested by the arrangement adopted by the previous legislative precedents, as we have seen. As I have already said, the separation created by the division into clauses hat been counteracted by the use of the preposition among' to govern the entire enumeration in the different clauses. Hence, it is not legitimate to (sic)ly upon this drafting arange-ment alone to overturn the legislative policy.

(ii) So far as punctuation is concerned, suffice it to say that it has been held both in England (Duke of Devonshire v. O'Connor, (1890) 21 QBD 468) and in India (Lewis Fugh v. Ashutosh Sen, AIR 1929 PC 69 (71) ) that punctuation is no part of the statute.

(iii) Nor does the conjunction 'or' stand as anInsurmountable bar. On this point also, the lawin England (Fowler v. Padget, (1798) 7 TR 509; Ledwith v. Roberts, (1937) 1 KB 232) as well as in India (Emperor v. Asimulla Mondal : AIR1925Cal1068 , Rayarappa v. Kelappa Kurup, ILR 40 Mad 594 : (AIR 1918 Mad 1026) (FB) is that it is legitimate to read the conjunctive and disjunctive words 'and' and 'or' one for the other where the literal interpretation would defeat the intention of the Legislature or the object of the Act.

17-19. If, therefore, I am correct in my conclusion regarding the intention or policy behind Section 85, the use of the word 'or' cannot be relied upon to defeat that object.

(i) Learned Advocate for the Petitioner has further argued that the construction that there may be a 'dispute' between parties enumerated in the same clause may lead to an absurd conclusion, namely, that there may be a dispute between the society and its managing committee, since both are enumerated in the same clause. It has been argued that the society being identified with its managing committee, there cannot be a dispute between the two. But though such an occasion may be rare, I do not think that such a contingency is unthinkable under the Act.

20. Section 23 says that the management of every co-operative society shall vest in a managing committee constituted according to the rules but Section 20 says that the final authority of every cooperative society shall vest in the general body of members in a general meeting. Section 25, on the other hand, gives the Registrar the power to dissolve a managing committee and reconstitute it on the ground of mismanagement, and for the purpose the Registrar may call a special general meeting of the Society. In this state of affairs, it is imaginable that there may be occasions when the general body of members may not agree as to the propriety of a particular act of the managing committee for the time being but, then. Instead of itself overriding the decision of the committee, it may refer the point of difference to the Registrar either to settle it or to take such other steps as he is empowered by the Act to take, in the circumstances.

21. I cannot, therefore, accept the contention that the construction adopted by me would lead to absurdity.

(g) Finally, learned Advocate for the Petitioner has referred me to the unreported decision ofP. Chatterjee, J. in C. R. No. 1266 of 1961 (Cal) which supports the construction suggested on behalf of the Petitioner before me and rejects the construction adopted by me herein. That decision was pronounced in a civil revision proceeding under Section 115 of the C. P. Code, where the jurisdiction of the Civil Court was in question and the decision solely depended on an interpretation of Section 86 as in the case before me. I would have been happy to have agreed with the view taken by my learned brother but, with great respect, I regret my inability, for the foregoing considerations which meet the points relied upon by my learned brother. Since there is no Division Bench taking up applications under Article 226, it is not possible for me to refer this matter to a Division Bench in view ofthe difference of opinion. Hence, there is no other alternative than to pronounce my decision to the contrary.

22. In view of the construction adopted byme, the present dispute between the Petitioner andthe Respondents comes within the purview of Section 86and the impugned proceedings are intra vires.Hence, the application is dismissed and the Ruledischarged, without any order as to costs.


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