Hans Raj vs Government Servants ...
1987 Latest Caselaw 17 Del

JUDGMENT

R.N. Aggarwal, J.

(1) A short but interesting question of law arises in this petition under Article 226 of the Constitution of India. The legal question that arises is whether a Tribunal constituted under Section 76 of the Delhi Co-operative Societies Act, 1972, (herein after all 'the Act') can go into the legality and validity of an order passed by the Registrar under Section 60 of the Act referring the disputes to arbitration. The award was in favor of the petitioner and on a appeal by the Society it was set aside by the Tribunal on the ground that the dispute before the Registrar, Co-operative Societies, was barred by time and hence not maintainable,

(2) The relevant facts are that the petitioner Shri Hans Raj is a member of the government Servants' Co-operative House Building Society Ltd. (Herein after called 'the Society') and he was allotted plot No. 4/15, in site 'A' Shanti Niketan on a premium of Rs. 10.75 per square yard. The Delhi Development Authority (the Lesser) in 1967 raised a further demand amounting to Rs. 10,03,009 as payable by the Society on account of increase in the enhancement of the compensation. The Society in turn asked for the payment of this additional demand from the allottees in the Shanti Niketan area which was calculated at Rs. 6.60 per square yard for each allottee in the area site 'A'. The Society by a letter dated 28th September, 1967 raised a demand on the petitioner as well as on all the other allottees in the Shanti Niketan area to pay an additional premium at the rate of Rs. 6.60 per square yard to meet this enhanced cost of land. The said demand was resisted by the petitioner and other allottees. The petitioner deposited a sum of Rs. 2,220 by a cheque on 1st January 1968. Further, an amount of Rs. 153 was standing to the credit of the petitioner in the books of the society. The petitioner represented to the Society for the refund of the aforesaid amounts. The Society, however, persisted that the petitioner was liable to pay his share of the enhanced compensation at the rate of Rs. 6.60 per square yard. The 1st representation made by the petitioner to the Society was on 10th July 1983. The Society by their letter dated 31st July, 1983. It seems, rejected the said representation of the petitioner.

(3) On 10th January, 1984 the petitioner filed a claim before the Registrar, Co-operative Societies, for the refund of Rs. 2,373 along with interest. The said application is at page 117 of the record.

(4) On 6th July 1984 Shri S.S. Saini, Deputy Registrar, made an order holding that a dispute exists between the member and the Society which is covered under Section 60(1) of the Act and the reference is within time under 'Section 60(4). The Deputy Registrar required the claimant to deposit Rs. 215 as 'arbitration fee within 15 days of the order. The order of the Deputy Registrar is brief one and it reads as under : "SHRI Hans Raj, the above mentioned claimant, filed an application under Section 60 claiming therein an amount of Rs. 7,167 towards the Government Servants Coop. House Building Society Ltd. The claimant has stated that a sum of Rs. 2,373 deposited by him on 1st January 1968 has been unnecessarily withheld by the society, so he has claimed this amount as well as interest and cost. The def. society has stated that the claimant has to pay Rs. 6.60 paise per sq. yard as additional premium on his plot and hence he has to pay the amount which he has already paid on the cost of the plot allotted to him. I have gone through the papers and records placed before me and listened to the arguments of both the parties at length. The Society has failed to show any letter from the Dda indicating therein that an additional premium of Rs. 6.60 paise is to be charged from the claimant because any premium on the cost of the land is payable to the Government/DDA and not to the society, the society has also failed in executing any supplementary lease-deed in respect of this plot showing additional premium over the cost of land. I, therefore, admit this application under Section 60 of the Delhi Co-operative Societies Act, 1972 and further hold that : (i) Dispute exists. (ii) Covered under Section 60(1). (iii) Dispute between parties under Section 60(1), a,b,c, & d. (iv) Reference in time under Section 60(iv). The claimant is hereby directed to deposit Rs. 215 as arbitrator fee within 15 days of this order failing which the case will be dismissed in default."

(5) The Registrar referred the disputes to the arbitration of Shri S.S. Sodhi. The arbitrator Shri S.S. Sodhi on 30th October, 1985 (gave an award in favor of the petitioner. The concluding portion of the award reads as, follows ' "FOR the reasons given above, I am of the view that the Society could ' not raise demand for additional premium of Rs. 6.60 per sq. yd. after having acted upon sanction letter of Dda of 19th September; 1970. I further hold that any amendment of the Sub-Lease deed makes it mandatory for the Society to obtain permission of the Lesser and in this case raising of additional premium on the allottees in site 'A' amounts to amendment of Sub-Lease Deed' without permission of the Lesser and hence is illegal."

(6) Against the above order the Society filed an appeal under Section 76 of the Act. The Tribunal held that the claim was barred by time and the' Registrar and given no finding on the point of limitation. The Tribunal further observed that the Deputy Registrar should have gone into the pleadings on the point of limitation and thereafter adjudicated upon the point. The operative part of the order of the Tribunal reads as under : . "AFTER going through the matter on the point of limitation and without going into the merits and. demerits of the case, I come to the conclusion that the application under Section 60 read with Rule 88 was not maintainable before the Deputy Registrar since it was made after a period of about 16 years and as such the award delivered by the learned arbitrator as impugned in this appeal is hereby held to be unsustainable. In end result the appeal stands accepted. The award of the learned arbitrator is hereby up set."

The legality and the validity of the aforesaid order is the subject of challenge in this petition.

(7) The relevant sections and rules which require consideration are Sections 60, 61, 76 and Rule 88. Section 60 provides that any dispute, other than the dispute regarding the disciplinary action against paid employees, arises among members, between member and member, between member and society, between society and liquidator, between the society and its committee and between the society and other co-operative society, such disputes shall be referred to the Registrar for decision and no court shall have jurisdiction to enter in any suit. Rule 88 lays down the procedure for making reference of disputes. The relevant portion of this rule reads as under : "88.(1) Where a party to a dispute referred to in Sub-section 91 of Section 60 desires to have the dispute determined in accordance with the said section, the party shall apply to the Registrar in writing in Form 17 staling inter alia (i) all the facts constituting the cause of action, (ii) names and addresses of the other parties, (iii) facts showing that the subject matter of dispute is not barred by limitation, (iv) relief claimed in terms of money or otherwise. Each statement in the application shall have separate consecutive paragraphs serially numbered. At the end of the application there shall be made verification with the place and date of verification. (2) A party, referring the dispute under Sub-section (1) of Section 60 to the Registrar shall pay a fee of Rs. 10 plus process fee at the rate of Rs. 2.50 for each party plus arbitration fee prescribed herein after shall be deposited in advance in the State Bank of India in the name of the Registrar in "Settlement and Executive Service Expenses Fund" the original of pay-in-slip for the deposit of this account shall be attached with the application for reference of a dispute. The application for reference of a dispute shall be delivered in the office of the Registrar personally and receipt obtained or by registered post Along with as many spare copies of the application as there are parties on the opposite side. (3) On receipt of the application, the Registrar shall enter it in a register in Form 18 and allot case No. on the application. (4) If the Registrar is satisfied that the application is maintainable under Section 50, he shall by an order, admit the application for decision of the dispute in accordance with the Act and Rules and record his findings on the following points : (i) Whether there is a dispute ? (ii) Whether the dispute comes within the purview of Sub-section (1) of.Section 60? (iii) Whether the dispute is between the parties mentioned in Clauses (a), (b), (c) and (d) of Sub-section (1) of Section 60 ? (iv) Whether the dispute is within time according to Sub-section (4) of Section 60 ? (5) After the application has been admitted by the registrar and after the claimant has deposited arbitration fee in the manner, and according to the scale of fees fixed by him, the application along with his orders thereon shall be referred for decision to the arbitrator."

Section 61 provides for the reference of the dispute to arbitration. Section 76 deals with appeals and revison. The relevant part of Section 76 reads as under: "76.Appeals. (1) Subject to the provisions of Section 77, an appeal shall lie under this section against- (i) any decision of award made under Section 61."

(8) Shri Sibal, learned counsel for the petitioner contended that Section 76 only provides for an appeal against any decision or award made under Section 61 and that Section 76 does not provide for an appeal against the decision of the Registrar under Section 60. Shri Sibal further contended that the learned Tribunal also is not correct in holding that the Deputy Registrar had given no decision on the point of limitation. Shri Sibal contended that the Deputy Registrar has specifically held that the claim is within time. Mr. Sibal contended that it is true that no reasons have been given for holding the claim to be within time, but this cannot vitiate the order of the Deputy Registrar on the facts and circumstances of this case.

(9) On the other hand, Shri Lonial, advocate for the Society, brought to our attention Section 88 and contended that Section 88 makes it incumbent on the claimant to specifically state the facts in the claim application showing that the subject matter of dispute is not barred by limitation and further it makes it obligatory on the Registrar to give a finding whether the dispute is within time according to Sub-section (4} of Section 60, and that only after the Registrar is satisfied that the application is maintainable under Section 60 that the disputes can be referred to arbitration. Shri Lonial 'referred to the application made by the petitioner and contended that he had made no mention in the application that the dispute is not barred by limitation.

(10) We have given our utmost consideration to the contentions raised at the bar and we are of the view that the contentions of Shri Sibal must prevail. We find that Section 76 only provides for an appeal against any decision or award made under Section 61. Section 76 does not provide for an appeal against the decision of the Registrar under Section 60. After a dispute is referred to an arbitrator under Section 60, the arbitrator has only to go into the merits of the disputes and give his award. It would not be open to the arbitrator under Section 61 to examine the legality or validity of the reference of the disputes to him or to re-examine the question of limitation which under Section 60 is completely within the domain of the Registrar to examine. A decision in appeal is also in the nature of an award. It is not disputed by Shri Lonial that Section 76 does not provide for an appeal against an order made by the Registrar or the Deputy Registrar under Section 60 of the Act. We for the reasons sta.ted above are of the view that the learned Tribunal has travelled outside its jurisdiction in examining the legality and validity of the order of the Deputy Registrar made under Section 60. The learned Tribunal could only go into the legality and validity of the award and he could not go into the validity of the reference of disputes to arbitration under Section 60.

(11) We further find that in the claim application the petitioner has clearly stated that he had been making repeated representations and the last representation made by him was on 10th July 1983 and from the reply given by the Society on 31st July, 1983 it appeared that it had no intention to refund the amount. The respondents in their reply affidavit have not placed on record the reply of the Society to the said claim application. There is nothing on the record to show that the society in their reply and taken any plea of limitation. The Deputy Registrar had in his order clearly found the claim to be within time. We are of the view that the finding of the Tribunal that the Deputy Registrar had not dealt with the question of limitation is factually incorrect. It may be that the finding is not couched in clear language but there is no manner of doubt that the Deputy Registrar had held the claim to be within limitation.

(12) We allow the petition and quash the order of the Tribunal and direct that he shall hear the appeal and decide it on merits. The petitioner shall have his costs which are assessed at Rs. 500.