U.P. Civil Secretrait Primary ... vs U.P. Co-Operative Tribunal ...
2022 Latest Caselaw 1302 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

										AFR
 

 
Court No. - 19
 

 
Case :- WRIT - C No. - 13574 of 2018
 
Petitioner :- U.P. Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow
 
Respondent :- U.P. Co-Operative Tribunal Lucknow Thru. Its Chairman And Ors
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- C.S.C.,Anurag Srivastava,Rakesh Srivastava
 

 
ALONG WITH 
 
Case :- WRIT - C No. - 14821 of 2018
 
Petitioner :- UP Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow
 
Respondent :- U.P. Co-Operative Tribunal Lucknow Thru Chairman And Others
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- C.S.C.,Anurag Srivastava
 
AND
 
Case :- WRIT - C No. - 14822 of 2018
 
Petitioner :- UP Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow
 
Respondent :- U.P. Co-Operative Tribunal Lucknow Thru Chairman And Others
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- C.S.C.,Anurag Srivastava,Balram Yadava
 
AND
 
Case :- WRIT - C No. - 14824 of 2018
 
Petitioner :- UP Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow
 
Respondent :- U.P. Co-Operative Tribunal Lucknow Thru Chairman And Others
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- C.S.C.,Anurag Srivastava,Radhey Krishna Tiwari 
 
AND 
 

 
Case :- WRIT - C No. - 14827 of 2018
 
Petitioner :- UP Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow
 
Respondent :- U.P. Co-Operative Tribunal Lucknow Thru Chairman And Others
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- C.S.C.,Anurag Srivastava,Balram Yadava
 
AND
 
Case :- WRIT - C No. - 14832 of 2018
 
Petitioner :- UP Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow
 
Respondent :- U.P. Co-Operative Tribunal Lucknow Thru Chairman And Others
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- C.S.C.,Anurag Srivastava,Balram Yadava 
 
AND
 
Case :- WRIT - C No. - 14835 of 2018
 
Petitioner :- UP Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow
 
Respondent :- U.P. Co-Operative Tribunal Lucknow Thru Chairman And Others
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- C.S.C.,Anurag Srivastava,Balram Yadava
 
AND
 
Case :- WRIT - C No. - 14838 of 2018
 
Petitioner :- UP Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow
 
Respondent :- U.P. Co-Operative Tribunal Lucknow Thru Chairman And Others
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- C.S.C.,Anurag Srivastava
 
AND
 
Case :- WRIT - C No. - 14841 of 2018
 
Petitioner :- UP Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow
 
Respondent :- U.P. Co-Operative Tribunal Lucknow Thru Chairman And Others
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- C.S.C.,Anurag Srivastava,Balram Yadava
 
AND
 
Case :- WRIT - C No. - 14843 of 2018
 
Petitioner :- UP Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow
 
Respondent :- U.P. Co-Operative Tribunal Lucknow Thru Chairman And Others
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- C.S.C.,Anurag Srivastava,Balram Yadava
 

 
Hon'ble Pankaj Bhatia,J.

1. Heard Sri Vinod Kumar Singh, learned Counsel for the petitioner as well as Sri Pankaj Srivastava along with Sri Shashank Bhasim, learned Counsel appearing on behalf of the State and Sri Rakesh Srivastava, learned Counsel appearing on behalf of the respondent no.5 in leading Writ-C No.13574 of 2018.

2. All the petitions arise out of a common order, as such, the same are being decided by means of this common judgment.

3. For the sake of brevity, the facts as emerge from Writ-C No.13574 of 2018 are being recorded.

4. By means of the present writ petitions, the petitioners have challenged the judgment and order dated 21.03.2018 passed by the U.P. Co-operative Tribunal, Lucknow (hereinafter referred to as "the Tribunal"), whereby the appeals preferred against the order dated 23.01.2017 have been allowed.

5. The facts in brief are that in the year 2013, a complaint was received alleging irregularities committed by the employees as well as the members of the Committee of Management of the U.P. Civil Secretariat Primary Co-operative Bank Limited, on which, initially a Committee was constituted under Section 66 of the U.P. Co-operative Societies Act, 1965 (in short "the 1965 Act") and the matter was got investigated. It is stated that prima facie, certain irregularities were revealed. The proceedings were instituted under Section 68(2) of the 1965 Act. After hearing the parties, an order came to be passed under Section 68(2) on 23.01.2017 by an officer designated as the Joint Commissioner and Joint Registrar/ Additional Commissioner and Additional Registrar Co-operative.

6. Aggrieved against the said order, the persons against whom the said orders were passed (respondents herein) preferred appeals before the Tribunal. In all nine appeals, the main argument of the appellants was that the order dated 23.01.2017 is without jurisdiction. In support of the said argument, the appellants relied upon the notification issued by the State Government in exercise of powers conferred under Section 3(2) of the 1965 Act on 05.07.1969 as well as the subsequent notification dated 27.12.1975. They also placed reliance on the judgment of this Court dated 09.04.2010 passed in Misc. Single No.1712 of 2010 [Ravi Pratap Srivastava and others vs Co-operative Tribunal, U.P., Lucknow and others]. The Tribunal relying upon the judgment dated 09.04.2010 passed in the case of Ravi Pratap Srivastava (supra) allowed the appeals vide order dated 21.03.2018 and set aside the orders dated 23.01.2017 holding the same to be without jurisdiction and further observed that in case, any irregularity comes to light, the orders can be passed under Section 68 of the 1965 Act in accordance with law. The said order dated 21.03.2018 is under challenge before this Court.

7. The Counsel for the petitioner argues that the orders passed by officer designated as the Joint Commissioner and Joint Registrar/ Additional Commissioner and Additional Registrar Co-operative was well within jurisdiction. He argues that Section 3 of the 1965 Act provides for a Registrar and the State Government is under an obligation to appoint a person to be the Registrar of the Co-operative Societies for the State. Sub-section (2) of Section 3 confers additional powers on the State Government to appoint other persons to assist the Registrar by a general or special order and confer upon them all or any of the powers of the Registrar. Section 3 is quoted hereinbelow:

"3. Registrar. - (1) The State Government may appoint a person to be the Registrar of Cooperative Societies for the State.

(2) The State Government may, for the purposes of this Act, also appoint other persons to assist the Registrar and by general or special order confer on any such person all or any of the powers of the Registrar.

(3) Where any order has been made under sub-section (2) conferring on any person all or any of the powers of the Registrar under any provision of this Act, such order shall be deemed to confer on him all the powers under that provision as may be amended from time to time."

8. The Counsel for the petitioner further argues that the order dated 23.01.2017 was passed in exercise of powers under Section 68 of the 1965 Act which confers the power of levy of surcharge on the Registrar. Section 68 is quoted hereinbelow:

"68. Surcharge. - (1) If in the course of an audit, inquiry, inspection or the winding up of a co-operative society it is found that any person, who is or was entrusted with the organization or management of such society or who is or has at any time been an officer or an employee of the society, has made or caused to be made any payment contrary to this Act, the rules or the bye-laws or has caused any deficiency in the assets of the society by breach of trust or wilful negligence or has misappropriated or fraudulently retained any money or other property belonging to such Society, the Registrar may of his own motion or on the application of the committee, liquidator or any creditor, inquire himself or direct any person authorized by him by an order in writing in this behalf to inquire into the conduct of such person:

Provided that no such inquiry shall be commenced after the expiry of twelve years from the date of any act or omission referred to in this sub-section.

(2) Where an inquiry is made under sub-section (1) the Registrar may, after affording the person concerned a reasonable opportunity of being heard, made an order of surcharge requiring him to restore the property or repay the money or any part thereof with interest at such rate, or to pay contribution and costs or compensation to such an extent as the Registrar may consider just and equitable.

(3) Where-an order of surcharge has been passed against a person under sub-section (2) for having caused any deficiency in the assets of the society by breach of trust or willful negligence, or for having misappropriated or fraudulently retained any money or other property belonging to such society, such person shall, subject to the result of appeal, if any, field against such order, be disqualified from continuing in or being elected or appointed to an office in any co-operative society for a period of five years from the date of the order of surcharge."

9. The Counsel for the petitioner further argues that by means of a specific notification issued under Section 3(2) of the 1965 Act on 05.07.1969, the powers to be exercised by the Registrar were conferred upon the Deputy Registrar/ Assistant Registrar, (in-charge of a Division) under Clause 2 of the said notification and in the light thereof, all the powers to be exercised by the Registrar could also be exercised by the Deputy Registrar/ Assistant Registrar, (in-charge of a Division). He further argues that subsequent to the notification dated 05.07.1969, another notification was issued on 27.12.1975 reiterating the delegation of powers on the Deputy Registrar who could exercise all the powers conferred on the Registrar. Based upon the said notifications, the Counsel for the petitioner argues that the Tribunal has erred in allowing the appeal on the question of jurisdiction, inasmuch as, the Deputy Registrar was duly empowered to perform the functions which are conferred upon the Registrar in terms of the mandate of the 1965 Act. He further argues that the judgment of this Court dated 09.04.2010 in Ravi Pratap Srivastava (supra) does not go into all these questions and does not take notice of the notifications and thus merely placing reliance on the said judgment was not a proper exercise of power by the Tribunal. In the light of the aforesaid arguments, it is argued that the petitions deserve to be allowed and the order passed in appeal by the Tribunal is required to be set aside.

10. The learned Additional Chief Standing Counsel based upon the instructions of Mr. R.K. Kulshrestha, the Additional Registrar, who is present in Court, argues that in terms of the notification issued by virtue of powers conferred under Section 3 (2) of the 1965 Act, the notification issued on 05.07.1969 conferred simultaneous powers on the Additional Registrar and the Joint Registrar for exercise of powers of the Registrar only in respect of the societies which were given under the charge of the Additional Registrar or the Joint Registrar by the Registrar as well as the Assistant Registrar was conferred the powers in respect of Primary Co-operative Societies for exercise of powers under Section 68. He further states that subsequently by virtue of notification dated 27.12.1975, the position which stood by virtue of Clause (1) of the notification of 1969 was clarified and extended to include all the powers of the Registrar by the Additional Registrar at the Headquarters or the Deputy Registrar at the Headquarters in respect of the societies which were assigned by the Registrar to the said Additional Registrar or the Deputy Registrar in respect of the societies within the division. The Deputy Registrar was conferred to the powers exercised by the Registrar within the said division and it was further clarified that the District Additional Registrar can exercise the powers only in respect of the societies which fall within the area of jurisdiction and to that extent, the notification dated 05.07.1969 was clarified.

11. The Counsel for the respondent Sri Rakesh Srivastava, on the other hand, argues that it is well settled that the powers under Section 68 are to be exercised by the Registrar of the Society and the said powers can be delegated validly by the State Government by exercising the powers under Section 3(2) of the 1965 Act. He, however, submits that in the notification dated 05.07.1969 while in Clause (2), the powers of a Registrar were delegated upon the Deputy Registrar/ Assistant Registrar, however, in terms of Clause (4), there was specific delegation of powers on the District Assistant Registrar for exercise of powers under Section 68 relating to Primary Co-operative Societies.

12. The Counsel for the respondent further argues that the subsequent notification of 1975 does not repeal the earlier notification of 1969, in fact, it specifically provides that the notification dated 27.12.1975 is in continuation of the earlier notification. He argues that although in the notification dated 27.12.1975, the powers have been conferred upon the Deputy Registrar under Clause (2) of the 1975 notification, however, the fact remains that a specific delegation as conferred by Clause (4) of the 1969 notification could still not held to be repealed especially relating to exercise of power under Section 68 of the 1965 Act relating to the Primary Co-operative Societies. On the foundation of the said, he argues that once the delegation is specific, the general delegation would not prevail and the argument of the Counsel for the petitioner cannot be accepted. In support of his submission, he places reliance on the views of the various Authors, while quoting from "Juridical Review Of Administrative Action". He relies upon the following paragraphs:

"A discretionary power must, in general, be exercised only by the authority to which it has been committed. It is a well-known principle of law that when a power has been confided to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another. This principle, which has often been applied in the law of agency, trusts and arbitration, is expressed in the form of the maxim delegatus non potest delegare (or delegari), a maxim which, it has been suggested, "owes its origin to mediaeval commentators on the Digest and the Dcretals, and its vogue in the common law to the carelessness of a sixteenth-century printer." The widespread assumption that it applies only to the sub-delegation of delegated legislative powers and to the sub-delegation of other powers delegated by a superior administrative authority is unfounded. It applies to the delegation of all classes of powers, and it was indeed originally invoked in the context of delegation of judicial powers. It is therefore convenient to travel beyond the delegation of discretionary powers in the strict sense and to view the problem as a whole."

13. The Counsel for the respondent further relies upon the commentary of "Administrative Law" of Sir William Wade, which is as under:

"An element which is essential to the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred, and by no one else. The principle is strictly applied, even where it causes administrative inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable. Normally the courts are rigorous in requiring the power to be exercised by the precise person or body stated in the statute, and in condemning as ultra vires action taken by agents, sub-committees or delegates, however expressly authorised by the authority endowed with the power."

14. He further argues that the Government Orders have to be construed harmoniously and specifically relies upon the judgment of the Hon'ble Supreme Court in the case of Sultana Begum vs Prem Chand Jain; (1997) 1 SCC 373 wherein he places particular emphasis. Paragraphs 11 to 17 and 21 are quoted below:

"11. The statute has to be read as a whole to find out the real intention of the legislature.

12. In Canada Sugar Refining Co. vs. R. (1898) AC 735, Lord Davy observed:-

"Every clause of a statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter."

13. This Court has adopted the same rule in M. Pentiah vs Muddala Veeramallappa; AIR 1961 SC 1107; Gamman India Ltd. vs Union of India; AIR 1974 SC 960; Mysore State Road Transports Corporation vs Mirza Khasim All Beg; AIR 1977 SC 747; V. Tulsamma vs. Sesha Reddy; (1977) 3 SCC 99; Punjab Beverages (P) Ltd. vs Suresh Chand; AIR 1978 SC 995; Commissioner of Income-tax vs. National Taj Traders; AIR 1980 SC 485; Calcutta Gas Co. (Proprietary) Ltd. vs State of West Bengal; AIR 1962 SC 1044 and J.K. Cotton Spinning and Weaving Mills vs State of U.P. AIR 1961 SC 1170.

14. This rule of construction which is also spoken of as "ex visceribus actus" helps in avoiding any inconsistency either within a Section or between two different Section or provisions of the same statute.

15. On a conspectus of the case law indicated above, the following principles are clearly discernible:

(1) It is the duty of the courts to avoid a head-on clash between two Sections of the Act and to construe the provisions which appear to be in conflict with each other in such a manner as to harmonise them.

(2) The provisions of one Section of a statute cannot be used to defeat the other provisions unless the court, in spite of its efforts, finds it impossible to effect reconciliation between them.

(3) It has to be borne in mind by all the courts all the time that when there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is the essence of the rule of "harmonious construction".

(4) The courts have also to keep in mind that an interpretation which reduces one of the provisions as a "dead letter" or "useless lumber" is not harmonious construction.

(5) To harmonise is not to destroy any statutory provision or to render it otiose.

16. Interpreting the provisions of Section 47 and Order XXI Rule 2 in the light of the above principles, there does not appear to be any antithesis between the two provisions. Section 47 deals with the power of the court executing the decree while Order XXI Rule 2 deals with the procedure which a court whose duty it is to execute the decree has to follow in a limited class of cases relating to the discharge or satisfaction of decrees either by payment of money (payable under the decree) out of court or adjustment in any other manner by consensual arrangement.

17. Since Section 47 provides that the question relating to the execution, discharge or satisfaction of the decrees shall be determined by the court executing the decree, it clearly confers a specific jurisdiction for the determination of those questions on the executing court.

21. The problem can be looked into from another angle on the basis of the maxim "generalia specialibus non derogant".

15. He also places reliance on the judgment of the Hon'ble Supreme Court in the case of Maya Mathew vs State of Kerala and others; (2010) 4 SCC 498 wherein the Hon'ble Supreme Court held on an occasion to consider the applicability of two Rules applicable to the services of the employee concerned and specifically laid the law with regard to the interpretation as under:

"12. The rules of interpretation when a subject is governed by two sets of Rules are well settled. They are:

(i) When a provision of law regulates a particular subject and a subsequent law contains a provision regulating the same subject, there is no presumption that the later law repeals the earlier law. The rule making authority while making the later rule is deemed to know the existing law on the subject. If the subsequent law does not repeal the earlier rule, there can be no presumption of an intention to repeal the earlier rule;

(ii) When two provisions of law - one being a general law and the other being special law govern a matter, the court should endeavour to apply a harmonious construction to the said provisions. But where the intention of the rule making authority is made clear either expressly or impliedly, as to which law should prevail, the same shall be given effect.

(iii) If the repugnancy or inconsistency subsists in spite of an effort to read them harmoniously, the prior special law is not presumed to be repealed by the later general law. The prior special law will continue to apply and prevail in spite of the subsequent general law. But where a clear intention to make a rule of universal application by superseding the earlier special law is evident from the later general law, then the later general law, will prevail over the prior special law.

(iv) Where a later special law is repugnant to or inconsistent with an earlier general law, the later special law will prevail over the earlier general law."

16. He also places reliance on another judgment of the Hon'ble Supreme Court in the case of Commercial Tax Officer, Rajasthan vs M/s Binani Cements Limited and another; (2014) 8 SCC 319 wherein the Hon'ble Supreme Court has held on the occasion to consider the applicability of two laws and to decide whether a general law would apply or special law would apply and in that context, Hon'ble Supreme Court has observed as under:

"34. It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the Latin maxim of generalia specialibus non derogant i.e. general law yields to special law should they operate in the same field on same subject (Vepa P. Sarathi, Interpretation of Statutes, 5th Edn., Eastern Book Company; N.S. Bindra's Interpretation of Statutes, 8th Edn., The Law Book Company; Craies on Statute Law, S.G.G. Edkar, 7th Edn., Sweet & Maxwell; Justice G.P. Singh, Principles of Statutory Interpretation, 13th Edn., Lexis Nexis; Craies on Legislation, Daniel Greenberg, 9th Edn., Thomson Sweet & Maxwell, Maxwell on Interpretation of Statutes, 12th Edn., Lexis Nexis).

35. Generally, the principle has found vast application in cases of there being two statutes: general or specific with the latter treating the common subject-matter more specifically or minutely than the former. Corpus Juris Secundum, 82 C.J.S. Statutes § 482 states that when construing a general and a specific statute pertaining to the same topic, it is necessary to consider the statutes as consistent with one another and such statutes therefore should be harmonised, if possible, with the objective of giving effect to a consistent legislative policy. On the other hand, where a general statute and a specific statute relating to the same subject-matter cannot be reconciled, the special or specific statute ordinarily will control. The provision more specifically directed to the matter at issue prevails as an exception to or qualification of the provision which is more general in nature, provided that the specific or special statute clearly includes the matter in controversy (Edmond v. United States [137 L Ed 2d 917 : 520 US 651 (1997)], Warden v. Marrero [41 L Ed 2d 383 : 417 US 653 (1974)] ).

36. The maxim generalia specialibus non derogant is dealt with in Vol. 44(1) of the 4th Edn. of Halsbury's Laws of England at Para 1300 as follows:

"The principle descends clearly from decisions of the House of Lords in Seward v. Vera Cruz [(1884) LR 10 AC 59 : (1881-85) All ER Rep 216 (HL)] and the Privy Council in Barker v. Edger [1898 AC 748 : (1895-99) All ER Rep Ext 1642 (PC)] and has been affirmed and put into effect on many occasions.... If Parliament has considered all the circumstances of, and made special provision for, a particular case, the presumption is that a subsequent enactment of a purely general character would not have been intended to interfere with that provision; and therefore, if such an enactment, although inconsistent in substance, is capable of reasonable and sensible application without exten AFR

Case :- WRIT - C No. - 13574 of 2018

Petitioner :- U.P. Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow

Respondent :- U.P. Co-Operative Tribunal Lucknow Thru. Its Chairman And Ors

Counsel for Petitioner :- Vinod Kumar Singh

Counsel for Respondent :- C.S.C.,Anurag Srivastava,Rakesh Srivastava

ALONG WITH

Case :- WRIT - C No. - 14821 of 2018

Petitioner :- UP Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow

Respondent :- U.P. Co-Operative Tribunal Lucknow Thru Chairman And Others

Counsel for Petitioner :- Vinod Kumar Singh

Counsel for Respondent :- C.S.C.,Anurag Srivastava

AND

Case :- WRIT - C No. - 14822 of 2018

Petitioner :- UP Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow

Respondent :- U.P. Co-Operative Tribunal Lucknow Thru Chairman And Others

Counsel for Petitioner :- Vinod Kumar Singh

Counsel for Respondent :- C.S.C.,Anurag Srivastava,Balram Yadava

AND

Case :- WRIT - C No. - 14824 of 2018

Petitioner :- UP Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow

Respondent :- U.P. Co-Operative Tribunal Lucknow Thru Chairman And Others

Counsel for Petitioner :- Vinod Kumar Singh

Counsel for Respondent :- C.S.C.,Anurag Srivastava,Radhey Krishna Tiwari

AND

Case :- WRIT - C No. - 14827 of 2018

Petitioner :- UP Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow

Respondent :- U.P. Co-Operative Tribunal Lucknow Thru Chairman And Others

Counsel for Petitioner :- Vinod Kumar Singh

Counsel for Respondent :- C.S.C.,Anurag Srivastava,Balram Yadava

AND

Case :- WRIT - C No. - 14832 of 2018

Petitioner :- UP Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow

Respondent :- U.P. Co-Operative Tribunal Lucknow Thru Chairman And Others

Counsel for Petitioner :- Vinod Kumar Singh

Counsel for Respondent :- C.S.C.,Anurag Srivastava,Balram Yadava

AND

Case :- WRIT - C No. - 14835 of 2018

Petitioner :- UP Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow

Respondent :- U.P. Co-Operative Tribunal Lucknow Thru Chairman And Others

Counsel for Petitioner :- Vinod Kumar Singh

Counsel for Respondent :- C.S.C.,Anurag Srivastava,Balram Yadava

AND

Case :- WRIT - C No. - 14838 of 2018

Petitioner :- UP Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow

Respondent :- U.P. Co-Operative Tribunal Lucknow Thru Chairman And Others

Counsel for Petitioner :- Vinod Kumar Singh

Counsel for Respondent :- C.S.C.,Anurag Srivastava

AND

Case :- WRIT - C No. - 14841 of 2018

Petitioner :- UP Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow

Respondent :- U.P. Co-Operative Tribunal Lucknow Thru Chairman And Others

Counsel for Petitioner :- Vinod Kumar Singh

Counsel for Respondent :- C.S.C.,Anurag Srivastava,Balram Yadava

AND

Case :- WRIT - C No. - 14843 of 2018

Petitioner :- UP Civil Secretariat Primary Co-Operative Bank Ltd. Lucknow

Respondent :- U.P. Co-Operative Tribunal Lucknow Thru Chairman And Others

Counsel for Petitioner :- Vinod Kumar Singh

Counsel for Respondent :- C.S.C.,Anurag Srivastava,Balram Yadava

Hon'ble Pankaj Bhatia,J.

1. Heard Sri Vinod Kumar Singh, learned Counsel for the petitioner as well as Sri Pankaj Srivastava along with Sri Shashank Bhasim, learned Counsel appearing on behalf of the State and Sri Rakesh Srivastava, learned Counsel appearing on behalf of the respondent no.5 in leading Writ-C No.13574 of 2018.

2. All the petitions arise out of a common order, as such, the same are being decided by means of this common judgment.

3. For the sake of brevity, the facts as emerge from Writ-C No.13574 of 2018 are being recorded.

4. By means of the present writ petitions, the petitioners have challenged the judgment and order dated 21.03.2018 passed by the U.P. Co-operative Tribunal, Lucknow (hereinafter referred to as "the Tribunal"), whereby the appeals preferred against the order dated 23.01.2017 have been allowed.

5. The facts in brief are that in the year 2013, a complaint was received alleging irregularities committed by the employees as well as the members of the Committee of Management of the U.P. Civil Secretariat Primary Co-operative Bank Limited, on which, initially a Committee was constituted under Section 66 of the U.P. Co-operative Societies Act, 1965 (in short "the 1965 Act") and the matter was got investigated. It is stated that prima facie, certain irregularities were revealed. The proceedings were instituted under Section 68(2) of the 1965 Act. After hearing the parties, an order came to be passed under Section 68(2) on 23.01.2017 by an officer designated as the Joint Commissioner and Joint Registrar/ Additional Commissioner and Additional Registrar Co-operative.

6. Aggrieved against the said order, the persons against whom the said orders were passed (respondents herein) preferred appeals before the Tribunal. In all nine appeals, the main argument of the appellants was that the order dated 23.01.2017 is without jurisdiction. In support of the said argument, the appellants relied upon the notification issued by the State Government in exercise of powers conferred under Section 3(2) of the 1965 Act on 05.07.1969 as well as the subsequent notification dated 27.12.1975. They also placed reliance on the judgment of this Court dated 09.04.2010 passed in Misc. Single No.1712 of 2010 [Ravi Pratap Srivastava and others vs Co-operative Tribunal, U.P., Lucknow and others]. The Tribunal relying upon the judgment dated 09.04.2010 passed in the case of Ravi Pratap Srivastava (supra) allowed the appeals vide order dated 21.03.2018 and set aside the orders dated 23.01.2017 holding the same to be without jurisdiction and further observed that in case, any irregularity comes to light, the orders can be passed under Section 68 of the 1965 Act in accordance with law. The said order dated 21.03.2018 is under challenge before this Court.

7. The Counsel for the petitioner argues that the orders passed by officer designated as the Joint Commissioner and Joint Registrar/ Additional Commissioner and Additional Registrar Co-operative was well within jurisdiction. He argues that Section 3 of the 1965 Act provides for a Registrar and the State Government is under an obligation to appoint a person to be the Registrar of the Co-operative Societies for the State. Sub-section (2) of Section 3 confers additional powers on the State Government to appoint other persons to assist the Registrar by a general or special order and confer upon them all or any of the powers of the Registrar. Section 3 is quoted hereinbelow:

"3. Registrar. - (1) The State Government may appoint a person to be the Registrar of Cooperative Societies for the State.

(2) The State Government may, for the purposes of this Act, also appoint other persons to assist the Registrar and by general or special order confer on any such person all or any of the powers of the Registrar.

(3) Where any order has been made under sub-section (2) conferring on any person all or any of the powers of the Registrar under any provision of this Act, such order shall be deemed to confer on him all the powers under that provision as may be amended from time to time."

8. The Counsel for the petitioner further argues that the order dated 23.01.2017 was passed in exercise of powers under Section 68 of the 1965 Act which confers the power of levy of surcharge on the Registrar. Section 68 is quoted hereinbelow:

"68. Surcharge. - (1) If in the course of an audit, inquiry, inspection or the winding up of a co-operative society it is found that any person, who is or was entrusted with the organization or management of such society or who is or has at any time been an officer or an employee of the society, has made or caused to be made any payment contrary to this Act, the rules or the bye-laws or has caused any deficiency in the assets of the society by breach of trust or wilful negligence or has misappropriated or fraudulently retained any money or other property belonging to such Society, the Registrar may of his own motion or on the application of the committee, liquidator or any creditor, inquire himself or direct any person authorized by him by an order in writing in this behalf to inquire into the conduct of such person:

Provided that no such inquiry shall be commenced after the expiry of twelve years from the date of any act or omission referred to in this sub-section.

(2) Where an inquiry is made under sub-section (1) the Registrar may, after affording the person concerned a reasonable opportunity of being heard, made an order of surcharge requiring him to restore the property or repay the money or any part thereof with interest at such rate, or to pay contribution and costs or compensation to such an extent as the Registrar may consider just and equitable.

(3) Where-an order of surcharge has been passed against a person under sub-section (2) for having caused any deficiency in the assets of the society by breach of trust or willful negligence, or for having misappropriated or fraudulently retained any money or other property belonging to such society, such person shall, subject to the result of appeal, if any, field against such order, be disqualified from continuing in or being elected or appointed to an office in any co-operative society for a period of five years from the date of the order of surcharge."

9. The Counsel for the petitioner further argues that by means of a specific notification issued under Section 3(2) of the 1965 Act on 05.07.1969, the powers to be exercised by the Registrar were conferred upon the Deputy Registrar/ Assistant Registrar, (in-charge of a Division) under Clause 2 of the said notification and in the light thereof, all the powers to be exercised by the Registrar could also be exercised by the Deputy Registrar/ Assistant Registrar, (in-charge of a Division). He further argues that subsequent to the notification dated 05.07.1969, another notification was issued on 27.12.1975 reiterating the delegation of powers on the Deputy Registrar who could exercise all the powers conferred on the Registrar. Based upon the said notifications, the Counsel for the petitioner argues that the Tribunal has erred in allowing the appeal on the question of jurisdiction, inasmuch as, the Deputy Registrar was duly empowered to perform the functions which are conferred upon the Registrar in terms of the mandate of the 1965 Act. He further argues that the judgment of this Court dated 09.04.2010 in Ravi Pratap Srivastava (supra) does not go into all these questions and does not take notice of the notifications and thus merely placing reliance on the said judgment was not a proper exercise of power by the Tribunal. In the light of the aforesaid arguments, it is argued that the petitions deserve to be allowed and the order passed in appeal by the Tribunal is required to be set aside.

10. The learned Additional Chief Standing Counsel based upon the instructions of Mr. R.K. Kulshrestha, the Additional Registrar, who is present in Court, argues that in terms of the notification issued by virtue of powers conferred under Section 3 (2) of the 1965 Act, the notification issued on 05.07.1969 conferred simultaneous powers on the Additional Registrar and the Joint Registrar for exercise of powers of the Registrar only in respect of the societies which were given under the charge of the Additional Registrar or the Joint Registrar by the Registrar as well as the Assistant Registrar was conferred the powers in respect of Primary Co-operative Societies for exercise of powers under Section 68. He further states that subsequently by virtue of notification dated 27.12.1975, the position which stood by virtue of Clause (1) of the notification of 1969 was clarified and extended to include all the powers of the Registrar by the Additional Registrar at the Headquarters or the Deputy Registrar at the Headquarters in respect of the societies which were assigned by the Registrar to the said Additional Registrar or the Deputy Registrar in respect of the societies within the division. The Deputy Registrar was conferred to the powers exercised by the Registrar within the said division and it was further clarified that the District Additional Registrar can exercise the powers only in respect of the societies which fall within the area of jurisdiction and to that extent, the notification dated 05.07.1969 was clarified.

11. The Counsel for the respondent Sri Rakesh Srivastava, on the other hand, argues that it is well settled that the powers under Section 68 are to be exercised by the Registrar of the Society and the said powers can be delegated validly by the State Government by exercising the powers under Section 3(2) of the 1965 Act. He, however, submits that in the notification dated 05.07.1969 while in Clause (2), the powers of a Registrar were delegated upon the Deputy Registrar/ Assistant Registrar, however, in terms of Clause (4), there was specific delegation of powers on the District Assistant Registrar for exercise of powers under Section 68 relating to Primary Co-operative Societies.

12. The Counsel for the respondent further argues that the subsequent notification of 1975 does not repeal the earlier notification of 1969, in fact, it specifically provides that the notification dated 27.12.1975 is in continuation of the earlier notification. He argues that although in the notification dated 27.12.1975, the powers have been conferred upon the Deputy Registrar under Clause (2) of the 1975 notification, however, the fact remains that a specific delegation as conferred by Clause (4) of the 1969 notification could still not held to be repealed especially relating to exercise of power under Section 68 of the 1965 Act relating to the Primary Co-operative Societies. On the foundation of the said, he argues that once the delegation is specific, the general delegation would not prevail and the argument of the Counsel for the petitioner cannot be accepted. In support of his submission, he places reliance on the views of the various Authors, while quoting from "Juridical Review Of Administrative Action". He relies upon the following paragraphs:

"A discretionary power must, in general, be exercised only by the authority to which it has been committed. It is a well-known principle of law that when a power has been confided to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another. This principle, which has often been applied in the law of agency, trusts and arbitration, is expressed in the form of the maxim delegatus non potest delegare (or delegari), a maxim which, it has been suggested, "owes its origin to mediaeval commentators on the Digest and the Dcretals, and its vogue in the common law to the carelessness of a sixteenth-century printer." The widespread assumption that it applies only to the sub-delegation of delegated legislative powers and to the sub-delegation of other powers delegated by a superior administrative authority is unfounded. It applies to the delegation of all classes of powers, and it was indeed originally invoked in the context of delegation of judicial powers. It is therefore convenient to travel beyond the delegation of discretionary powers in the strict sense and to view the problem as a whole."

13. The Counsel for the respondent further relies upon the commentary of "Administrative Law" of Sir William Wade, which is as under:

"An element which is essential to the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred, and by no one else. The principle is strictly applied, even where it causes administrative inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable. Normally the courts are rigorous in requiring the power to be exercised by the precise person or body stated in the statute, and in condemning as ultra vires action taken by agents, sub-committees or delegates, however expressly authorised by the authority endowed with the power."

14. He further argues that the Government Orders have to be construed harmoniously and specifically relies upon the judgment of the Hon'ble Supreme Court in the case of Sultana Begum vs Prem Chand Jain; (1997) 1 SCC 373 wherein he places particular emphasis. Paragraphs 11 to 17 and 21 are quoted below:

"11. The statute has to be read as a whole to find out the real intention of the legislature.

12. In Canada Sugar Refining Co. vs. R. (1898) AC 735, Lord Davy observed:-

"Every clause of a statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter."

13. This Court has adopted the same rule in M. Pentiah vs Muddala Veeramallappa; AIR 1961 SC 1107; Gamman India Ltd. vs Union of India; AIR 1974 SC 960; Mysore State Road Transports Corporation vs Mirza Khasim All Beg; AIR 1977 SC 747; V. Tulsamma vs. Sesha Reddy; (1977) 3 SCC 99; Punjab Beverages (P) Ltd. vs Suresh Chand; AIR 1978 SC 995; Commissioner of Income-tax vs. National Taj Traders; AIR 1980 SC 485; Calcutta Gas Co. (Proprietary) Ltd. vs State of West Bengal; AIR 1962 SC 1044 and J.K. Cotton Spinning and Weaving Mills vs State of U.P. AIR 1961 SC 1170.

14. This rule of construction which is also spoken of as "ex visceribus actus" helps in avoiding any inconsistency either within a Section or between two different Section or provisions of the same statute.

15. On a conspectus of the case law indicated above, the following principles are clearly discernible:

(1) It is the duty of the courts to avoid a head-on clash between two Sections of the Act and to construe the provisions which appear to be in conflict with each other in such a manner as to harmonise them.

(2) The provisions of one Section of a statute cannot be used to defeat the other provisions unless the court, in spite of its efforts, finds it impossible to effect reconciliation between them.

(3) It has to be borne in mind by all the courts all the time that when there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is the essence of the rule of "harmonious construction".

(4) The courts have also to keep in mind that an interpretation which reduces one of the provisions as a "dead letter" or "useless lumber" is not harmonious construction.

(5) To harmonise is not to destroy any statutory provision or to render it otiose.

16. Interpreting the provisions of Section 47 and Order XXI Rule 2 in the light of the above principles, there does not appear to be any antithesis between the two provisions. Section 47 deals with the power of the court executing the decree while Order XXI Rule 2 deals with the procedure which a court whose duty it is to execute the decree has to follow in a limited class of cases relating to the discharge or satisfaction of decrees either by payment of money (payable under the decree) out of court or adjustment in any other manner by consensual arrangement.

17. Since Section 47 provides that the question relating to the execution, discharge or satisfaction of the decrees shall be determined by the court executing the decree, it clearly confers a specific jurisdiction for the determination of those questions on the executing court.

21. The problem can be looked into from another angle on the basis of the maxim "generalia specialibus non derogant".

15. He also places reliance on the judgment of the Hon'ble Supreme Court in the case of Maya Mathew vs State of Kerala and others; (2010) 4 SCC 498 wherein the Hon'ble Supreme Court held on an occasion to consider the applicability of two Rules applicable to the services of the employee concerned and specifically laid the law with regard to the interpretation as under:

"12. The rules of interpretation when a subject is governed by two sets of Rules are well settled. They are:

(i) When a provision of law regulates a particular subject and a subsequent law contains a provision regulating the same subject, there is no presumption that the later law repeals the earlier law. The rule making authority while making the later rule is deemed to know the existing law on the subject. If the subsequent law does not repeal the earlier rule, there can be no presumption of an intention to repeal the earlier rule;

(ii) When two provisions of law - one being a general law and the other being special law govern a matter, the court should endeavour to apply a harmonious construction to the said provisions. But where the intention of the rule making authority is made clear either expressly or impliedly, as to which law should prevail, the same shall be given effect.

(iii) If the repugnancy or inconsistency subsists in spite of an effort to read them harmoniously, the prior special law is not presumed to be repealed by the later general law. The prior special law will continue to apply and prevail in spite of the subsequent general law. But where a clear intention to make a rule of universal application by superseding the earlier special law is evident from the later general law, then the later general law, will prevail over the prior special law.

(iv) Where a later special law is repugnant to or inconsistent with an earlier general law, the later special law will prevail over the earlier general law."

16. He also places reliance on another judgment of the Hon'ble Supreme Court in the case of Commercial Tax Officer, Rajasthan vs M/s Binani Cements Limited and another; (2014) 8 SCC 319 wherein the Hon'ble Supreme Court has held on the occasion to consider the applicability of two laws and to decide whether a general law would apply or special law would apply and in that context, Hon'ble Supreme Court has observed as under:

"34. It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the Latin maxim of generalia specialibus non derogant i.e. general law yields to special law should they operate in the same field on same subject (Vepa P. Sarathi, Interpretation of Statutes, 5th Edn., Eastern Book Company; N.S. Bindra's Interpretation of Statutes, 8th Edn., The Law Book Company; Craies on Statute Law, S.G.G. Edkar, 7th Edn., Sweet & Maxwell; Justice G.P. Singh, Principles of Statutory Interpretation, 13th Edn., Lexis Nexis; Craies on Legislation, Daniel Greenberg, 9th Edn., Thomson Sweet & Maxwell, Maxwell on Interpretation of Statutes, 12th Edn., Lexis Nexis).

35. Generally, the principle has found vast application in cases of there being two statutes: general or specific with the latter treating the common subject-matter more specifically or minutely than the former. Corpus Juris Secundum, 82 C.J.S. Statutes § 482 states that when construing a general and a specific statute pertaining to the same topic, it is necessary to consider the statutes as consistent with one another and such statutes therefore should be harmonised, if possible, with the objective of giving effect to a consistent legislative policy. On the other hand, where a general statute and a specific statute relating to the same subject-matter cannot be reconciled, the special or specific statute ordinarily will control. The provision more specifically directed to the matter at issue prevails as an exception to or qualification of the provision which is more general in nature, provided that the specific or special statute clearly includes the matter in controversy (Edmond v. United States [137 L Ed 2d 917 : 520 US 651 (1997)], Warden v. Marrero [41 L Ed 2d 383 : 417 US 653 (1974)] ).

36. The maxim generalia specialibus non derogant is dealt with in Vol. 44(1) of the 4th Edn. of Halsbury's Laws of England at Para 1300 as follows:

"The principle descends clearly from decisions of the House of Lords in Seward v. Vera Cruz [(1884) LR 10 AC 59 : (1881-85) All ER Rep 216 (HL)] and the Privy Council in Barker v. Edger [1898 AC 748 : (1895-99) All ER Rep Ext 1642 (PC)] and has been affirmed and put into effect on many occasions.... If Parliament has considered all the circumstances of, and made special provision for, a particular case, the presumption is that a subsequent enactment of a purely general character would not have been intended to interfere with that provision; and therefore, if such an enactment, although inconsistent in substance, is capable of reasonable and sensible application without extending to the case in question, it is prima facie to be construed as not so extending. The special provision stands as an exceptional proviso upon the general. If, however, it appears from a consideration of the general enactment in the light of admissible circumstances that Parliament's true intention was to establish thereby a rule of universal application, then the special provision must give way to the general."

17. The Hon'ble Supreme Court in the case of Commercial Tax Officer, Rajasthan (supra), after discussing the various judgment on the point aforesaid finally observed as under:

"47. Having noticed the aforesaid, it could be concluded that the rule of statutory construction that the specific governs the general is not an absolute rule but is merely a strong indication of statutory meaning that can be overcome by textual indications that point in the other direction. This rule is particularly applicable where the legislature has enacted comprehensive scheme and has deliberately targeted specific problems with specific solutions. A subject specific provision relating to a specific, defined and descriptable subject is regarded as an exception to and would prevail over a general provision relating to a broad subject."

18. In the light of the aforesaid arguments and the judgments cited, the Counsel for the respondents argues that the petition deserves to be dismissed.

19. In rejoinder, the Counsel for the petitioner while placing reliance on paragraphs 6 and 7 of the Hon'ble Supreme Court judgment in the case of State of Kerala vs P.B. Sourabhan and others; (2016) 4 SCC 102 argues that the powers could be exercised by the Deputy Registrar as has been rightly done and the tribunal was wrong in passing the order which is impugned in the bunch of writ petitions.

20. He also places reliance on the judgment of this Court in the case of Smt. Lilawati and six others vs U.P. Co-operative Tribunal, Lucknow and others; 2020 (3) ADJ 622 to argue that the question of jurisdiction was not raised and thus he would be estopped from raising question at the appellate stage.

21. In the light of the arguments, the Court is to decide the effect of two notifications which are to be interpreted by this Court conferring jurisdiction on the Deputy Registrar and District Assistant Registrar or the District Assistant Registrar only for exercise of powers under Section 68 of the1965 Act in respect of Primary Co-operative Societies.

22. Section 3(2) of the Act confers the powers upon the State Government to appoint other persons to assist the Registrar by special or general order. Thus, in terms of the mandate of Section 3(2), it is upon for the State Government to delegate the functions and powers to be performed by the Registrar upon any of the officers as specified in the notification.

23. Relevant extracts of Notification No.3328-C/ XII-CA-25(1)-67, dated June 24, 1969 and Notification No.5539/ C-1-7 (16) 75, Lucknow dated 27.12.1975 are quoted herein:

"Notification No.3328-C/ XII-CA-25(1)-67, dated June 24, 1969

In exercise of the powers under sub-section (2) of Section 3 of the Uttar Pradesh Co-operative Societies Act, 1965 (U.P. Act XI of 1966), the Governor is pleased to confer, subject to the provisions of the said Act and the rules made thereunder, the powers of the Registrar under that Act and the rules, to be exercised as follows:

(1) An officer for the time being holding the post of Additional Registrar, Co-operative Societies, at the headquarters of the Registrar Co-operative Societies, U.P. or the Deputy Registrar of the Co-operative Societies at the said headquarters shall exercise the powers of the Registrar under the Act and the rules in respect of such class or classes or type or types of Co-operative Societies which, by the order of the Registrar, are placed under the charge of such officer:

Provided that the power under Section 14, 125 and 126 and under Rules, 30, 31, 32 and 33 shall not be exercised by the said Deputy Registrar in respect of an apex Co-operative Society or a Central Co-operative Society and the powers under Rules, 124, 125 and 126 shall not be exercised by him in respect of an apex Co-operative Society;

2. An officer for the time being holding the post of Deputy Registrar/ Assistant Registrar, Incharge of a Division, shall exercise the powers of the Registrar under the Act and the rules within the area of his jurisdiction:

Provided that the powers under Sections 14, 125, and 126 and under Rules 30, 31, 32 and 33 shall not be exercised by the said Deputy Registrar/ Assistant Registrar in respect of an apex Co-operative Society or a Central Co-operative Society and the powers under Rules 124, 125 and 126 shall not be exercised by such officer in respect of an apex Co-operative Society;

(3) ...

(4) An office for the time being holding the post of District Assistant Registrar, Co-operative Societies, U.P. shall exercise the powers of the Registrar -

(a) under Section 32, 33, 37, 66, 67, 69 and 103 of the Act and Rules 104, 134 and 287 in respect of all the Co-operative Societies, other than apex Co-operative Societies, having headquarters within the area of his jurisdiction;

(b) under Sections 70, 71, 98, 109 and 115 of the Act and Rules 312(c) 331, 332, 336, 365, 366, 369, 370, 371, 372, 374, 377 and 378 in respect of all the Co-operative Societies, having headquarters within the area of his jurisdiction; and

(c) under Sections 27, 29, 31, 65, 68, 74, 91, 92 and 127 of the Act and Rules 42, 43, 60, 61, 62, 90, 97, 110, 111, 124, 125, 151, 178, 180, 213, 214, 215 and 224 in respect only the primary Co-operative Societies, having headquarters within the area of his jurisdiction;"

¿lgdkfjrk¼1½ vuqHkkx] la[;k [email protected]&1&7¼16½ 75] y[kuÅ fnukad 27 fnlEcj] 1975À

mRrj izns'k lk/kkj.k [kaM vf/kfu;e] 1904 ¼mRrj izns'k vf/kfu;e la[;k 1] 1904½ dh /kkjk 21 ds lkFk ifBr mRrj izns'k lgdkjh lfefr vf/kfu;e] 1965 ¼mRrj izns'k vf/kfu;e la[;k 11] 1966½ dh /kkjk 3 dh mi/kkjk ¼2½ ds v/khu 'kfDr dk iz;ksx djds rFkk ljdkjh vf/klwpuk la[;k [email protected]@12 lh ,&25 ¼1½@67] fnukad 24 twu 1969 ds dze esa jkT;iky fuEufyf[kr O;fDr;ksa dks rRdkyhu izHkko ls mRrj izns'k lgkdjh lfefr ¼la'kks/ku½ v/;kns'k] 1975 ¼mRrj izns'k v/;kns'k la[;k 26] 1975½ }kjk ;Fkkla'kksf/kr mDr vfkfu;e la[;k 11] 1966 ds v/khu fucU/kd ds vf/kdkjh iznku djrs gS%&

¼1½ lgdkjh lfefr;ksa ds fucU/kd] mRrj izns'k ds eq[;ky; vij ij fucU/kd] ;k mDr eq[;ky; ij lgdkjh lfefr;ksa ds mi fucU/kd dk in /kkj.k djus okyk dksbZ O;fDr ,sls oxZ ;k oxksZ vFkok ,sls izdkj ;k izdkjks dh lgdkjh lfefr;kas ds tks fucU/kd ds vkns'k }kjk ,sls vij fucU/kd ;k mi fucU/kd ds izHkkj esa j[kh xbZ gks] lEcU/k esa mDr v/;kns'k }kjk ;Fkk la'kksf/kr mDr vf/kfu;e la[;k 11] 1966 ds v/khu fucU/kd dh 'kfDr;ksa dk iz;ksx djsxkA

¼2½ fMohtu eas rRle;] lgdkjh lfefr;ksa ds mi fucU/kd dk in /kkj.k djus okyk dksbZ O;fDr vius vf/kdkfjrk ds {ks= esa mDr v/;kns'k }kjk ;Fkkla'kksf/kr mDr vf/kfu;e l[a;k 11] 1966 ds v/khu fucU/kd dh 'kfDr;ksa dk iz;ksx djsxkA

¼3½ rRle; ftyk lgk;d fucU/kd] lgdkjh lfefr;ksa dk in /kkj.k djus okyk dksbZ O;fDr dsoy ,slh izkjfEHkd lgdkjh lfefr;ksa ds ftuds eq[;ky; mudh vf/kdkfjrk ds {ks= ds Hkhrj gks] lEcU/k esa mDr v/;kns'k }kjk ;Fkkla'kksf/kr mDr vf/kfu;e la[;k 11] 1966 dh /kkjk 29] 35&d rFkk 95&d ds v/khu fucU/kd dh 'kfDr;ksa dk iz;ksx djsxkA"

24. From the notification dated 05.07.1969, it is clear that the powers of the Registrar have been delegated extensively upon the Deputy Registrar/ Assistant Registrar, (in-charge of the Division) in terms of Clause (2) relating to all the powers of the Registrar except as prohibited under the proviso to Clause (2) of the notification dated 05.07.1969. If Clause (2) is read with Clause (4), it makes clear that simultaneous and concurrent powers have been delegated to the Deputy Registrar and the District Assistant Registrar, the only difference being that the powers of the Deputy Registrar/ Assistant Registrar in that division go the extent of all the powers to be performed by the Registrar except as prohibited under the proviso to Clause (2) whereas the District Assistant Registrar under Clause (4)not can perform and exercise the powers of a Registrar in respect of the powers conferred and specifies under Clause (a) to (c) of Clause (4) of the notification dated 05.07.1969. The notification of 1975 delegated all powers to be exercised by the Registrar upon the Additional Registrar or Deputy Registrar in respect of societies placed by the Registrar under the said Additional Registrar or Deputy Registrar. Interestingly there is no corresponding provisions akin to Clause (4) as was contained in the notification dated 1969.

25. It is also relevant to mention here that the word "Deputy Registrar" used in the earlier notifications of 1969 and 1975 were amended to include the word "Joint/ Deputy Registrar" by virtue of another notification dated 26.07.2006.

26. Considering the submissions of the Counsel for the respondents, the law in respect of delegation of powers/ functions is reasonably and fairly well settled that the powers can be exercised only by the person upon whom the powers are delegated specifically and in terms of the mandate of the Act and by no one else. However, there is no bar that the powers cannot be conferred on multiple officers giving them concurrent jurisdiction to exercise the powers which also appears from the mandate of Section 3(2) of the 1965 Act which used the word 'persons' and not 'person'.

27. The judgment cited by the Counsel for the respondent in the case of Sultana Begum (supra) lays down the law while interpreting two provisions which are inconsistent. Similarly the judgment of the Supreme Court in Maya Methew (supra) interprets and lays down law to interpret rules which are overlapping, whereas, in the present case the two provisions in the notification of 1969 are not inconsistent but confer jurisdiction on two set of officers one at the divisional level and other at the district level in respect of Primary Co-operative Societies.

28. Conforming concurrent jurisdiction on two or more offices is neither barred under the Act nor is unknown in adjudicatory functions, in fact the Section 3(2) envisages and provides for delegations in favour of 'persons'.

29. It is well established that the court cannot read a statutory provisions contrary to its language unless the same is prohibited under the Act or has the potential to lead to absurd results.

30. This Court can also not loose site of the fact that the vires of the notifications or the provisions of the Act are not under challenge in the present proceedings and thus the same are to be read only on the terms as contained in the notification.

31. As regards the judgment of this Court in the case of Ravi Pratap Srivastava (supra) which is the foundation for passing the impugned order, the same ex-facie does not consider the scope of notifications of 1969 or 1975, thus cannot be read to be laying any law on question of jurisdiction of officers under the Act.

32. Thus on the basis of the reasoning recorded above, it has to be held that concurrent jurisdiction has been conferred upon the officers in respect of Primary Co-operative Societies and the order passed by the Joint Registrar/ Joint Commissioner (Co-operative), Lucknow, respondent no.3 dated 23.01.2017 and impugned before the Tribunal was well within jurisdiction and thus the order of the Tribunal dated 21.03.2018 is clearly not sustainable and is set aside in all the petitions, the matters are remanded before the Tribunal to decide the matter afresh on merits and in accordance with law with all expedition.

33. The writ petitions stand allowed.

Order Dated:20.04.2022

akverma (Pankaj Bhatia,J.)ding to the case in question, it is prima facie to be construed as not so extending. The special provision stands as an exceptional proviso upon the general. If, however, it appears from a consideration of the general enactment in the light of admissible circumstances that Parliament's true intention was to establish thereby a rule of universal application, then the special provision must give way to the general."

17. The Hon'ble Supreme Court in the case of Commercial Tax Officer, Rajasthan (supra), after discussing the various judgment on the point aforesaid finally observed as under:

"47. Having noticed the aforesaid, it could be concluded that the rule of statutory construction that the specific governs the general is not an absolute rule but is merely a strong indication of statutory meaning that can be overcome by textual indications that point in the other direction. This rule is particularly applicable where the legislature has enacted comprehensive scheme and has deliberately targeted specific problems with specific solutions. A subject specific provision relating to a specific, defined and descriptable subject is regarded as an exception to and would prevail over a general provision relating to a broad subject."

18. In the light of the aforesaid arguments and the judgments cited, the Counsel for the respondents argues that the petition deserves to be dismissed.

19. In rejoinder, the Counsel for the petitioner while placing reliance on paragraphs 6 and 7 of the Hon'ble Supreme Court judgment in the case of State of Kerala vs P.B. Sourabhan and others; (2016) 4 SCC 102 argues that the powers could be exercised by the Deputy Registrar as has been rightly done and the tribunal was wrong in passing the order which is impugned in the bunch of writ petitions.

20. He also places reliance on the judgment of this Court in the case of Smt. Lilawati and six others vs U.P. Co-operative Tribunal, Lucknow and others; 2020 (3) ADJ 622 to argue that the question of jurisdiction was not raised and thus he would be estopped from raising question at the appellate stage.

21. In the light of the arguments, the Court is to decide the effect of two notifications which are to be interpreted by this Court conferring jurisdiction on the Deputy Registrar and District Assistant Registrar or the District Assistant Registrar only for exercise of powers under Section 68 of the1965 Act in respect of Primary Co-operative Societies.

22. Section 3(2) of the Act confers the powers upon the State Government to appoint other persons to assist the Registrar by special or general order. Thus, in terms of the mandate of Section 3(2), it is upon for the State Government to delegate the functions and powers to be performed by the Registrar upon any of the officers as specified in the notification.

23. Relevant extracts of Notification No.3328-C/ XII-CA-25(1)-67, dated June 24, 1969 and Notification No.5539/ C-1-7 (16) 75, Lucknow dated 27.12.1975 are quoted herein:

"Notification No.3328-C/ XII-CA-25(1)-67, dated June 24, 1969

In exercise of the powers under sub-section (2) of Section 3 of the Uttar Pradesh Co-operative Societies Act, 1965 (U.P. Act XI of 1966), the Governor is pleased to confer, subject to the provisions of the said Act and the rules made thereunder, the powers of the Registrar under that Act and the rules, to be exercised as follows:

(1) An officer for the time being holding the post of Additional Registrar, Co-operative Societies, at the headquarters of the Registrar Co-operative Societies, U.P. or the Deputy Registrar of the Co-operative Societies at the said headquarters shall exercise the powers of the Registrar under the Act and the rules in respect of such class or classes or type or types of Co-operative Societies which, by the order of the Registrar, are placed under the charge of such officer:

Provided that the power under Section 14, 125 and 126 and under Rules, 30, 31, 32 and 33 shall not be exercised by the said Deputy Registrar in respect of an apex Co-operative Society or a Central Co-operative Society and the powers under Rules, 124, 125 and 126 shall not be exercised by him in respect of an apex Co-operative Society;

2. An officer for the time being holding the post of Deputy Registrar/ Assistant Registrar, Incharge of a Division, shall exercise the powers of the Registrar under the Act and the rules within the area of his jurisdiction:

Provided that the powers under Sections 14, 125, and 126 and under Rules 30, 31, 32 and 33 shall not be exercised by the said Deputy Registrar/ Assistant Registrar in respect of an apex Co-operative Society or a Central Co-operative Society and the powers under Rules 124, 125 and 126 shall not be exercised by such officer in respect of an apex Co-operative Society;

(3) ...

(4) An office for the time being holding the post of District Assistant Registrar, Co-operative Societies, U.P. shall exercise the powers of the Registrar -

(a) under Section 32, 33, 37, 66, 67, 69 and 103 of the Act and Rules 104, 134 and 287 in respect of all the Co-operative Societies, other than apex Co-operative Societies, having headquarters within the area of his jurisdiction;

(b) under Sections 70, 71, 98, 109 and 115 of the Act and Rules 312(c) 331, 332, 336, 365, 366, 369, 370, 371, 372, 374, 377 and 378 in respect of all the Co-operative Societies, having headquarters within the area of his jurisdiction; and

(c) under Sections 27, 29, 31, 65, 68, 74, 91, 92 and 127 of the Act and Rules 42, 43, 60, 61, 62, 90, 97, 110, 111, 124, 125, 151, 178, 180, 213, 214, 215 and 224 in respect only the primary Co-operative Societies, having headquarters within the area of his jurisdiction;"

¿lgdkfjrk¼1½ vuqHkkx] la[;k [email protected]&1&7¼16½ 75] y[kuÅ fnukad 27 fnlEcj] 1975À

mRrj izns'k lk/kkj.k [kaM vf/kfu;e] 1904 ¼mRrj izns'k vf/kfu;e la[;k 1] 1904½ dh /kkjk 21 ds lkFk ifBr mRrj izns'k lgdkjh lfefr vf/kfu;e] 1965 ¼mRrj izns'k vf/kfu;e la[;k 11] 1966½ dh /kkjk 3 dh mi/kkjk ¼2½ ds v/khu 'kfDr dk iz;ksx djds rFkk ljdkjh vf/klwpuk la[;k [email protected]@12 lh ,&25 ¼1½@67] fnukad 24 twu 1969 ds dze esa jkT;iky fuEufyf[kr O;fDr;ksa dks rRdkyhu izHkko ls mRrj izns'k lgkdjh lfefr ¼la'kks/ku½ v/;kns'k] 1975 ¼mRrj izns'k v/;kns'k la[;k 26] 1975½ }kjk ;Fkkla'kksf/kr mDr vfkfu;e la[;k 11] 1966 ds v/khu fucU/kd ds vf/kdkjh iznku djrs gS%&

¼1½ lgdkjh lfefr;ksa ds fucU/kd] mRrj izns'k ds eq[;ky; vij ij fucU/kd] ;k mDr eq[;ky; ij lgdkjh lfefr;ksa ds mi fucU/kd dk in /kkj.k djus okyk dksbZ O;fDr ,sls oxZ ;k oxksZ vFkok ,sls izdkj ;k izdkjks dh lgdkjh lfefr;kas ds tks fucU/kd ds vkns'k }kjk ,sls vij fucU/kd ;k mi fucU/kd ds izHkkj esa j[kh xbZ gks] lEcU/k esa mDr v/;kns'k }kjk ;Fkk la'kksf/kr mDr vf/kfu;e la[;k 11] 1966 ds v/khu fucU/kd dh 'kfDr;ksa dk iz;ksx djsxkA

¼2½ fMohtu eas rRle;] lgdkjh lfefr;ksa ds mi fucU/kd dk in /kkj.k djus okyk dksbZ O;fDr vius vf/kdkfjrk ds {ks= esa mDr v/;kns'k }kjk ;Fkkla'kksf/kr mDr vf/kfu;e l[a;k 11] 1966 ds v/khu fucU/kd dh 'kfDr;ksa dk iz;ksx djsxkA

¼3½ rRle; ftyk lgk;d fucU/kd] lgdkjh lfefr;ksa dk in /kkj.k djus okyk dksbZ O;fDr dsoy ,slh izkjfEHkd lgdkjh lfefr;ksa ds ftuds eq[;ky; mudh vf/kdkfjrk ds {ks= ds Hkhrj gks] lEcU/k esa mDr v/;kns'k }kjk ;Fkkla'kksf/kr mDr vf/kfu;e la[;k 11] 1966 dh /kkjk 29] 35&d rFkk 95&d ds v/khu fucU/kd dh 'kfDr;ksa dk iz;ksx djsxkA"

24. From the notification dated 05.07.1969, it is clear that the powers of the Registrar have been delegated extensively upon the Deputy Registrar/ Assistant Registrar, (in-charge of the Division) in terms of Clause (2) relating to all the powers of the Registrar except as prohibited under the proviso to Clause (2) of the notification dated 05.07.1969. If Clause (2) is read with Clause (4), it makes clear that simultaneous and concurrent powers have been delegated to the Deputy Registrar and the District Assistant Registrar, the only difference being that the powers of the Deputy Registrar/ Assistant Registrar in that division go the extent of all the powers to be performed by the Registrar except as prohibited under the proviso to Clause (2) whereas the District Assistant Registrar under Clause (4)not can perform and exercise the powers of a Registrar in respect of the powers conferred and specifies under Clause (a) to (c) of Clause (4) of the notification dated 05.07.1969. The notification of 1975 delegated all powers to be exercised by the Registrar upon the Additional Registrar or Deputy Registrar in respect of societies placed by the Registrar under the said Additional Registrar or Deputy Registrar. Interestingly there is no corresponding provisions akin to Clause (4) as was contained in the notification dated 1969.

25. It is also relevant to mention here that the word "Deputy Registrar" used in the earlier notifications of 1969 and 1975 were amended to include the word "Joint/ Deputy Registrar" by virtue of another notification dated 26.07.2006.

26. Considering the submissions of the Counsel for the respondents, the law in respect of delegation of powers/ functions is reasonably and fairly well settled that the powers can be exercised only by the person upon whom the powers are delegated specifically and in terms of the mandate of the Act and by no one else. However, there is no bar that the powers cannot be conferred on multiple officers giving them concurrent jurisdiction to exercise the powers which also appears from the mandate of Section 3(2) of the 1965 Act which used the word 'persons' and not 'person'.

27. The judgment cited by the Counsel for the respondent in the case of Sultana Begum (supra) lays down the law while interpreting two provisions which are inconsistent. Similarly the judgment of the Supreme Court in Maya Methew (supra) interprets and lays down law to interpret rules which are overlapping, whereas, in the present case the two provisions in the notification of 1969 are not inconsistent but confer jurisdiction on two set of officers one at the divisional level and other at the district level in respect of Primary Co-operative Societies.

28. Conforming concurrent jurisdiction on two or more offices is neither barred under the Act nor is unknown in adjudicatory functions, in fact the Section 3(2) envisages and provides for delegations in favour of 'persons'.

29. It is well established that the court cannot read a statutory provisions contrary to its language unless the same is prohibited under the Act or has the potential to lead to absurd results.

30. This Court can also not loose site of the fact that the vires of the notifications or the provisions of the Act are not under challenge in the present proceedings and thus the same are to be read only on the terms as contained in the notification.

31. As regards the judgment of this Court in the case of Ravi Pratap Srivastava (supra) which is the foundation for passing the impugned order, the same ex-facie does not consider the scope of notifications of 1969 or 1975, thus cannot be read to be laying any law on question of jurisdiction of officers under the Act.

32. Thus on the basis of the reasoning recorded above, it has to be held that concurrent jurisdiction has been conferred upon the officers in respect of Primary Co-operative Societies and the order passed by the Joint Registrar/ Joint Commissioner (Co-operative), Lucknow, respondent no.3 dated 23.01.2017 and impugned before the Tribunal was well within jurisdiction and thus the order of the Tribunal dated 21.03.2018 is clearly not sustainable and is set aside in all the petitions, the matters are remanded before the Tribunal to decide the matter afresh on merits and in accordance with law with all expedition.

33. The writ petitions stand allowed.

 
Order Dated:20.04.2022
 
akverma							      (Pankaj Bhatia,J.)