Shiv Kumar Mishra vs State Of ...
2021 Latest Caselaw 11065 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on 23.07.2021
 
Delivered on 07.09.2021
 

 
In Chamber
 
Case :- MISC. BENCH No. - 36348 of 2019
 
Petitioner :- Shiv Kumar Mishra
 
Respondent :- State Of U.P.Thru.Secy.U.P.Cooperative Society Lko. & Ors.
 
Counsel for Petitioner :- Brijesh Kumar Singh,Sanjay Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Neeraj Chaurasiya,S.G.Singh
 

 
Hon'ble Rajan Roy,J.

Hon'ble Ravi Nath Tilhari,J.

(Per: Hon'ble Ravi Nath Tilhari,J.)

1. Heard Sri Brijesh Kumar Singh, learned counsel for the petitioner, learned standing counsel for opposite party Nos. 1 and 2 and Sri S.G.Singh, learned counsel for opposite party No.3 and perused the material on record.

2. This petition has been filed for the following main reliefs:

(i) issue a writ, order or direction in the nature of certiorari, to quash the ex parte order dated 11.11.2019 passed by opposite party No.2 as contained in Annexure No.1 to this writ petition.

(ii) issue a writ, order or direction in the nature of mandamus, thereby commanding and directing the opposite parties to allow the petitioner on the post of deligate, as he was working earlier.

3. No counter affidavit has been filed, filing of which is also dispensed with as only legal question is involved and the parties counsels are ad idem that there is no factual dispute.

4. Learned counsel for the petitioner submits that the petitioner made a complaint to the Joint Commissioner and Joint Registrar, Cooperative Society, Ayodhya Mandal, Ayodhya-opposite party No.2 regarding corruption/misuse of public money in the contruction of cooperative bank building. The matter was investigated in which finally the opposite party No.2 vide order dated 26.02.2019 directed that at the time of payment for construction work, an amount of Rs. 3.19 lakhs shall be deducted and if payment had already been made the same amount shall be recovered. The petitioner started receiving threats from the Contractor and the Chairman of the co-operative society due to which the petitioner submitted an application for withdrawal from the membership on the post of delegate on 18.04.2019, upon which the Committee of Management of the District Cooperative Bank Limited, Faizabad-opposite party No.3 vide resolution No. 23 dated 31.07.2019 accepted the petitioner's application, but without following the due procedure. The Vice Chairman of the society and seven other delegates filed application dated 01.08.2019 before the Joint Commissioner and Joint Registrar of the co-operative society to annul the resolution dated 31.07.2019 upon which finally the Joint Commissioner and Joint Registrar passed order dated 01.11.2019 (Annexure 8) under Section 128 of the U.P. Co-operative Societies Act, 1965, and annuled the resolution No. 23, providing that the said resolution shall be void and inoperative and be deleted from the records of the co-operative society. Liberty was, however, granted to the Committee of Management to take fresh decision as per the majority. Later on, the opposite party No.3 filed an application dated 05.11.2019, upon which an ex parte order dated 11.11.2019 without any opportunity of hearing to the petitioner was passed and thereby the earlier order dated 01.11.2019 has been stayed. The writ petition has been filed challenging the order dated 11.11.2019.

5. Learned counsel for the petitioner has submitted that the Joint Commissioner and Joint Registrar has passed the order dated 11.11.2019 reviewing the order dated 01.11.2019 and in exercise of power under Rule 269 of the U.P. Cooperative Societies Rules, 1968, which is mentioned in the order itself. His submission is that there is no power of review with the Commissioner and Joint Registrar, Cooperative Societies and further as any clerical or arithmetical error or accidental slip or omission in the order dated 1.11.2019 has not been pointed out, Rule 269 of the Rules, 1968 is not attracted.

6. Learned counsel for opposite party No.3 has supported the order dated 11.11.2019 on the ground that the Committee of Management vide application dated 05.11.2019 assured the opposite party No.2 that the meeting of the Committee of Management shall be convened at the earliest pursuant to the earlier letter of the opposite party No.2 dated 02.08.2019, by which the Committee of Management/ Chief Executive Officer was directed to reconsider the resolution dated 31.07.2019.

7. We have heard the submissions advanced by the learned counsels for the parties and perused the material on record.

8. A perusal of the order dated 11.11.2019 shows that it has been passed specifically mentioning to be under Rule 269 of the Rules, 1968. It has also been recorded in the order that the application dated 05.11.2019 of the opposite party No.3 deserved review.

9. The points which arise for our consideration are:

1) Whether the Registrar, Co-operative Societies has the power of review under the U.P. Cooperative Societies Act, 1965 to review an order passed by him under Section 128 of the Act, 1965 ?

2) What is the scope of Rule 269 of the Rule 1968 ? and

3) Whether the impugned order dated 11.11.2019 is without jurisdiction and deserves to be quashed ?

10. To consider the above aspects it would be appropriate to refer to the provisions of Sections 128, 98 and 99 of the Act, 1965 and Rule 269 of the Rules,1968.

11. Section 128 of the U.P. Co-operative Societies Act, 1965 reads as under:-

"128. Registrar's power to annul resolution of a co-operative society or cancel order passed by an officer of a co-operative society in certain cases.-

The Registrar may-

(i) annul any resolution passed by the Committee of Management, or the general body of any co-operative society; or -

(ii) cancel any order passed by an officer of a co-operative society

if he is of the opinion that the resolution or the order, as the case may be, is not covered by the objects of the society or is in contravention of the provisions of this Act, the rules or the bye-laws of the society, whereupon every such resolution or order shall become void and inoperative and be deleted from the records of the society :

'[Provided that, the Registrar shall, before making any order, require the Committee of Management, general body or officer of the co-operative society to reconsider the resolution, or as the case may be, the order, within such period as he may fix but which shall not be less than fifteen days, and if he deems fit may stay the operation of that resolution or the order during such period.]

12. Section 98 of the U.P. Cooperative Societies Act, 1965 reads as under:-

"98. Appeal against the award, orders and decisions.- (1) An appeal against-

"( a ) an order of the Registrar made under sub-section ( 2 ) of Section 7 refusing to register a co-operative society ;

[ ( b ) an order of the Registrar under sub- section ( 3 ) of Section 12 refusing to register, or under sub - section ( 2 ) of Section 14 registering an amendment in the bye - laws of a co- operative society :

( c ) a decision of co- operative society refusing to admit any person as a member of the society under sub- section ( 2 ) of Section 26 or expelling any member of the society under sub-section (1) of Section 27 [or an order passed under sub- section ( 1 ) of Section 38 for removal of an officer from the office held by him or to disqualify him from holding any office] ;

( d ) an order of the Registrar under sub- section ( 2 ) of Section 27 expelling or removing a member or under sub- section ( 2 ) of Section 38 removing or disqualifying any officer of a co- operative society;

( e ) an order of the Registrar superseding the Committee of Management of a co- operative society under Section 35;

(f) an order made by the Registrar, under Section 67 apportioning the cost of an enquiry held under Section 65 or an inspection made under Section 66 ;

( g ) an order of surcharge made by the Registrar under Section 68 ;

( h ) an award made by an arbitrator or Board of Arbitrators under sub - section ( 1 ) or sub - section ( 2 ) of Section 71;

( i) an order made by the Registrar under Section 72 directing the winding up of a co- operative society;

(j) any order made by the liquidator of a co-operative society in exercise of the powers conferred on him by clauses ( b ) and ( g ) of Section 74 ;

(k) any order made by the Registrar on a question arising between the parties or proceedings under clause ( b ) of Section 92 and of the nature referred to in Section 47 of the Code of Civil Procedure, 1908 ( Act V of 1908 );

( 1 ) an order for attachment of any property made by the Registrar under Section 94 ;

(m) an order of the Registrar under Section 125 directing amalgamation or merger, or under Section 126 directing division;

(n) an order passed by the Registrar under Section 128 annulling any resolution or cancelling any order, may, within thirty days of the communication of the order, decision or award to be appealed against, be preferred by the aggrieved party to the authorities mentioned in sub-section (2) in the manner prescribed.

(2) An appeal under [clauses (c), (d), (e), (f), (g), (k) and (I) ] of sub-section (1) shall be preferred to the Tribunal, and an appeal under [clauses (a), (b), (h), (i),(j), (m) and (n) of the said sub-section shall be preferred-

(a) if the decision or the order was made by the Registrar, to the State Government, or

( b ) if the decision or order or award was made by any other person or authority, to the Registrar;

(c) if the order or award was made on a dispute relating to an election , to the Tribunal .

( 3 ) Notwithstanding anything contained in clause ( b ) of sub- section (2) the State Government may by notification in the Gazette, direct that appeals against awards mentioned in clause ( h ) of sub - section ( 1 ) shall , in respect of such cases or class of cases, as may be specified in the said notification lie to the Tribunal, and thereupon any person aggrieved by such award, may appeal to the Tribunal.

(4) The appellate authority after hearing an appeal under this section may pass such orders as it may deem fit .

13. Section 99 of the U.P. Cooperative Societies Act, 1965 reads as under:-

"99. Review of order of appellate authority- (1) The appellate authority under Section 97 or Section 98, as the case may be, may on the application of any party, review its order in any case and pass in reference thereto such order as it thinks fit :

Provided that no such application shall be entertained unless the appellate authority is satisfied that there has been a discovery of new and important matter of evidence which, after exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the order was made or that there has been some mistake or error apparent on the face of the record or for any other sufficient reason :

Provided further that no such order shall be made under this sub- section unless notice has been given to all interested parties and they have been afforded a reasonable opportunity of being heard.

(2) An application for review under sub-section (1) by any party shall be made within thirty days from the date of communication of the order of the appellate authority sought to be reviewed.

14. Rule 269 of the U.P. Cooperative Societies Rules, 1968 reads as under:-

"269. Clerical or arithmetical mistake in orders, decisions, or awards made by the Registrar, Arbitrator or the Board of Arbitrators or in the orders made by the appellate authority or errors arising in such orders (including the orders of appellate authority), decisions or awards from any accidental slip or omission may at any time be corrected by the authority concerned, either of its own motion or the application moved by any of the parties to the dispute."

15. The aforesaid provisions make it clear, from a bare reading thereof, that under Section 128 of the U.P. Co-operative Societies Act, 1965, the Registrar has the power to annual any resolution passed by the Committee of Management, or the general body of any co-operative society, or to cancel any order passed by an officer of a co-operative society, if he is of the opinion that the resolution or the order, as the case may be, is not covered by the objects of the society or is in contravention of the provisions of the Act, 1965, the rules, 1968 or the bye-laws of the society. An order passed under Section 128 by the Registrar is appealable under Section 98(1) (n) of the Act, 1965, before the State Government under Section 98(2) (a). Section 99 of the Act, 1965, provides for review which is against the order passed by the appellate authority under Section 97 or Section 98, by the appellate authority of its orders.

16. Section 99 of the Act, 1965 does not, therefore, provide for review against the order passed by the Registrar under Section 128. Any provision conferring the power of review on the Registrar against the order passed by him under Section 128 of the Act could not be brought to our notice by the learned counsels appearing in the case.

17. The power of review is not an inherent power. In Patel Narshi Thakershi And Ors. vs Shri Pradyumansinghji, AIR 1970 SC 1273, the Hon'ble Supreme Court held that "It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication." In Lily Thomas, Etc. vs Union Of India & Ors (2006) SCC 224 also it has been held that "the dictionary meaning of the word "review" is "the act of looking; offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. Therefore, the power of review unless conferred by the statue cannot be exercised by a Court, Tribunal or authority".

18. We have considered above, that the Co-operative Societies Act, 1965 does not confer any power of review on the Registrar with respect to the order passed under Section 128 of the Act, 1965. However, in cases where the appeal lies to the Registrar under Section 98 (2) (b) of the Act, the Registrar as appellate authority may review its order passed in exercise of appellate jurisdiction under Section 99 of the Act.

19. We are not oblivious of the concept of procedural review, which inheres in every judicial, quasi judicial or even an administrative authority, if the order is passed under an erroneous assumption of one's own power going to the root of the matter or if it is found that a fraud has been practiced or there was willful suppression, which is not the case here, as, the order dated 11.11.2019 does not contain any such ground for reviewing the order dated 01.11.2019.

20. A bare reading of Rule 269 of the Rules, 1969 shows that it gives power for correction of clerical or arithmetical mistakes in the orders, decisions, or award made by the Registrar, Arbitrator or the Board of Arbitrators or in the orders made by the appellate authority or error arising in such orders, decisions or awards from any accidental slip or omission which can be corrected by the authority concerned at any time either of its own motion or on the application of any of the parties to the dispute. The condition precedent for exercise of power under Rule 269 of the Rules, 1968 is that there must be a clerical or arithmetical mistake in the order or an error from any accidental slip or omission. If no such error exists the power under Rule 269 would not be available at all.

21. Rule 269 of the Rules, 1968 is analogous to Section 152 of the Code of Civil Procedure, 1976 (C.P.C.). Section 152 C.P.C. is being reproduced as under:

"152. Amendment of judgments, decrees or orders- Clerical or arithmetical mistakes in judgments, decree or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."

22. While considering the scope of Section 152 C.P.C., the Hon'ble Supreme Court in the case of Dwaraka Das Vs. State of M.P. and others (1999) 3 SCC 500 has held that the exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The correction contemplated are of correcting only accidental omission or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the Section cannot be pressed into service to correct an omission which is intentional, how erroneous that may be. No Court can under the cover of the sections 151 and 152 C.P.C. modify, alter or add to the terms of its original judgment, decree or order. It is appropriate to quote paragraph 6 of the Dwaraka Das (supra) as under:

"Section 152 CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders of errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the provisions of Sections 151 and 152 of the CPC even after passing of effective orders in the lis pending before them. No court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order. In the instant case, the trial court had specifically held the respondent- State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the Court had rejected the claim of the appellant insofar as pendente lite interest was concerned. The omission in not granting the pendente lite interest could not be held to be accidental omission or mistake as was wrongly done by the trial court vide order dated 30-11-1973. The High Court was, therefore, justified in setting aside the aforesaid order by accepting the revision petition filed by the State."

23. The law as laid down in Dwaraka Das (supra) would apply with equal force to an order passed under Rule 269 of the Rules, 1968 which is in pari materia with Section 152 C.P.C. but with the difference that the omission etc. contemplated in rule 269 and sought to be corrected occurring in an order passed under Section 128 of the Act, which goes to the merits of the case the proper remedy would be to file an appeal under Section 97 or 98 of the Act, 1965, as the case may be, and not the remedy of review. In Dwaraka Das (supra) the remedy of appeal or review was held to be proper remedy as C.P.C. confers the power of review on the courts, which power of review is not with the Registrar to review an order passed under Section 128 of the Act.

24. In State of Punjab Vs. Darshan Singh (2004) 1 SCC 328 also the Hon'ble Supreme Court has held that "the power under Section 152 of the Code are neither to be equated with the power of review nor can be said to be akin to review or even said to clothe the court concerned under the guise of invoking after the result of the judgment earlier rendered, in its entirety or any portion or part of it."

25. The order dated 11.11.2019, as is evident has not been passed on any such ground of clerical or arithmetical mistake or errors from accidental slip or omission in the order dated 01.11.2019.

26. We therefore hold, on points 1 to 3 as framed in paragraph 9 above, as under:

1) There is no power of review in the Registrar against its order passed under Section 128 of the Co-operative Societies Act, 1965, but if the order has been passed under an erroneous assumption of its own power going to the root of the matter, or, if, inter alia, it is found that there was willful suppression of material fact or fraud was practised the Registrar will have the power to review its earlier order.

2) The scope of rule 269 of the Rules, 1968 is only for correction of clerical or arithmetical mistakes in judgments or order or errors arising therein from any accidental slip or omission and any error or omission which goes to the merits of the case is beyond the scope of rule 269 of the Rules, 1968.

3) The order dated 11.11.2019 is illegal and without jurisdiction.

27. In view of the aforesaid, the order dated 11.11.2019 cannot be sustained and is hereby quashed. The order dated 01.11.2019 stands revived in terms thereof.

28. The writ petition is allowed.

 
Order Date :- 07.09.2021
 
Arvind
 

 
                                     (Ravi Nath Tilhari,J.)          (Rajan Roy,J.)