Ajit Singh And Another vs Madan Jha, Delhi Co-Op. Tribunal ...
1989 Latest Caselaw 488 Del

JUDGMENT

Bahri J.

1. This writ petition under articles 226 and 227 of the Constitution of India, is directed against an order dated October 9, 1987 passed by respondent No. 1 and other dated August 11, 1987 passed by respondent No. 2 under the provisions of the Delhi Co-operative Societies Act, 1972.

2. Facts, in brief, are that in the elections held to the managing committee of the Class IV Employees Co-operative Group Housing Society Limited, respondent No. 4, was elected as a number of the managing committee of the society. These elections were held on September 4, 1983. The managing committee appointed respondent No. 4 as hony. secretary of the society. His son, Shri Rakesh Gupta, was appointed as store-keeper-cum-supervisor. It is alleged that respondent No. 4, in collusion with his son, committed certain embezzlement with regard to the cement belonging to the society and the matter was reported to the police and Shri Rakesh Gupta was arrested. Respondent No. 4 later on, on his own, offered to pay a sum of Rs.16,500 to reimburse the society for the defalcations committed by his son vide his representation dated July 13, 1986. The managing committee then appointed an ad hoc committee for investigating the matter as it was assured by Shri K. C. Gupta,respondent No. 4 that if in the investigations, his son was found to be guilty, then the society could keep the said amount and if his son was found to be innocent, the amount was to be returned to respondent No. 4. The managing committee passed a resolution removing respondent NO. 4 as hony, secretary of the society and appointed petitioner No. 2, Shri Jai Nerain as the hony. secretary. Respondent No.4. however, did not hand over the record of the society to the newly appointed secretary and the society approached the Registrar, Co-operative Societies in this connection and the Assistant Registrar (Group Housing) made an application dated July 11, 1986 under section 33 of the Act to the Execute Magistrate, Sabzi Mandi, requesting him to authorise a police officer under section 33(2) to seize the records of the society from respondent No. 4 for handing over the same to Shri Jai Narain Sharma, secretary of the society. The Sub-Divisional Magistrate concerned had passed an order in this respect.

3. Respondent No. 4, after obtaining some more time from the Sub-Divisional Magistrate to enable him to hand over the record, filed a writ petition instead in the High Court challenging the order of the Sub-Divisional Magistrate which writ petition was dismissed in liming.

4. Respondent No. 4, thereafter, filed a petition before the Registrar, Co- operative Societies praying that the resolution of the managing committee by which he had been removed from the post of the hony. secretary be declared invalid and a prayer was made that the matter may be referred to an arbitrator under section 60 of the Act. This application was opposed by the petitioner. However, vide impugned order, the Joint Registrar made a reference under section 60 of the Act to an arbitrator for deciding the disputes whether respondent No. 4 had been removed by the managing committee in accordance with the provisions of the Act, rules and bye-laws and whether respondent No. 4 was responsible for the alleged misappropriation by his son and whether respondent No. 4 was guilty of withholding the records of the society and for the relief asked for by him in the application. This order of the Joint Registrar dated August 11, 1987 was challenged by the petitioner by filing a revision before respondent No. 1 under section 78(1) of the Act. However, respondent No. 1 vide his order dated October 9, 1987 dismissed the revision on the short ground that no revision was maintainable against the order of reference to arbitration made by the Joint Registrar under section 60 of the Act. No decision was given by respondent No. 1 with regard to the merits.

5. It has been contended on behalf of the Constitution that this order of respondent No. 2 is illegal inasmuch as the provisions of section 60 read with section 78(6) made it amply clear that a revision was competent against the order of the Joint Registrar under section 60 of the Act and thus the said order is liable to be set aside on this short ground.

6. The counsel for respondent No. 4, who alone has contested the petition, has, however, vehemently argued that the order passed by respondent No. 2 is quite legal and no revision was maintainable before respondent No. 1 against the order may by the Joint Registrar, respondent No. 2 herein, under section 60 of the Act. He has argued that under section 80 of the Act, a revision could lie to the Lt. Governor against any order made in proceedings in which no appeal lies.

7. I have considered the matter. it appears that respondent No. 1 was not right in coming to the conclusion on the basis of a judgment reported as [1987] Rajdhani Law Reporter 153: Hans Raj v. Government Servants Co- operative House Building Society that no revision was competent under section 78(6) in respect of the order of reference made by the Joint Registrar under section 60 of the Act. He did not follow the ratio laid down by the Supreme Court in Jai Mahavir Co-operative Housing Society Ltd. v. Panchal Keshavalal Narbheram, , on the ground that the judgment of the Supreme Court considered the provisions of the Gujarat Co- operative Societies ACt whereas the judgment of the Delhi High Court was directly in point with regard to the provisions of the Delhi Co-operative Societies Act. I have gone through the provisions of the Gujarat Co- operative Societies Act, 1962, and also the provisions of the Delhi Co- operative Societies Act. Section 60(1) of the Delhi Act was resorted to by respondent No. 4 for getting the dispute raised by him referred to the arbitrator. Section 96 of the Gujarat Act is almost similar to section 60 of the Delhi Act. Section 60(3) of the Delhi Act lays down that if any question arises as to whether a dispute referred to the Registrar under this section is or is not a dispute touching on the constitution, management or the business of a co-operative society, the decision thereon, of the Registrar, shall be final and shall not be called in question in nay court. Section 96(2) of the Gujarat Act also similarly lays down that when any question arises as to whether for the purposes of sub-section (1), a matter referred to for decision is a dispute or not, the question shall be considered by the Registrar whose decision shall be final. Section 78(6) of the Delhi Act gives power to the Tribunal to call for and examine the records of any proceedings in which an appeal lies to it, for purposes of satisfying itself as to the legality or propriety of any decision or order passed. Similarly, section 150(9) of the Gujarat Act is worded on the same lines and the matter came up before the Supreme Court in the case of Jai Mahavir, , and while interpreting the provisions of section 96(2) and section 150(9), it was held by the Supreme Court that against any order made by the Registrar for referring the disputes for arbiration, under section 96, a revision lies to the Board under section 150(9) of the Gujarat Act. The facts in brief, in that case case were that a resolution was passed by the society removing respondent No. 1 in that case from the membership of the society. Respondent No. 1 filed a petition before the Registrar for setting aside the said resolution of the society. The Registrar entertained the dispute and referred the dispute to his nominee. The Registrar's nominee dismissed the claim of respondent No. 1 and the matter was taken to the Tribunal by way of appeal. The Tribunal allowed the matter and remanded the matter to the Registrar for fresh decision. As the matter was still pending before the Registrar of Societies, the society moved an application before the Registrar under section 96(2) of the Gujarat Act, pleading that the dispute raised by respondent No. 4 stood already decided in some collateral proceedings and thus, the reference of the dispute under section 96 could not be made. the Registrar accepted that application and a revision was filed under section 150(9) of the Act. The Tribunal entertained the revision and held that the Registrar could not reopen the issue and the Registrar had no power of review. The revision was allowed. The society invoked the jurisdiction of the High Court under article 226 and 227 of the Constitution. Besides other issues, one of the issues raised in the writ petition was as to whether the Tribunal had any revisional jurisdiction against an order made by the Registrar under section 96(2) of the Gujarat Act. The High Court held that the Tribunal had such revisional power. The matter was taken to the Supreme Court and a contention was raised that in any proceedings in which an appeal lies to the Tribunal, revisional power could not be exercised. The Supreme Court observed that the word "proceedings" which is qualified by the phrase "in which appeal lies" means that if a final order is made disposing of the appeal, the appeal to the Tribunal would be competent and before the final order is made, the same Tribunal shall have the revisional jurisdiction to examine the orders made in such proceedings and it was held that any order made by the Registrar making reference under section 96(1) read with section 96(2) of the Gujarat Act would be amenable to revision before the Tribunal.

8. In the present case, the petitioner had taken a plea before the Joint Registrar that the claim by respondent No. 4 was not maintainable for arbitration for the reason that the society has not been made a party and the petitioners have been joined as parties sin the said claim petition in their individual capacity. The Joint Registrar, however, without dealing with this point, made a reference of the said dispute to his nominee for his decision. The counsel for respondent No. 4 has vehemently argued that no decision has been invited from the Registrar on the point whether the disputes raised by respondent No. 4 are covered by the provisions of section 60 of the Act and thus the Registrar has not given any finding under section 60(3) of the Act which could be considered final though open to challenge only by filing a revision under section 78(6). He has tried to distinguish the judgment of the Supreme Court by contending that in the facts before the Supreme Court, the finding had been invited from the Registrar under section 96(2) of the Gujarat Act with regard to the nature of the disputes as to whether they were covered by the provisions of section 96(1) or not. I do not find any merit in these contentions of learned counsel for respondent No. 4. It is evident that the Joint Registrar had made a reference of the disputes exercising his powers under section 60. He did not give any importance to the objections raised by the petitioner on the point that the disputes were not referable to arbitration. It would mean that the Joint Registrar made an order under section 60(3) of the Act. Such an order, in view of the ratio laid down by the Supreme Court, is open to challenge by filing a revision. As far as the judgment of this court in the case of Hans Raj [1987] Raj LR 153 is concerned, the same was on different facts. Even counsel for respondent No. 4 did not try to support the impugned order of respondent No. 1 by anything said in this judgment. In this case, an award had been made under section 61 on a reference under section 60 of the Act. An appeal was filed to the Tribunal and a plea was taken that the dispute which was raised before the Registrar by the petitioner was barred by time and hence, not maintainable. There is a finding that under section 76, an appeal can be filed against a decision or award made under section 61 and it does not provide for an appeal against the decision of the Registrar under section 60 of the Act by which he refers the dispute to an arbitrator for decision. There was no controversy arising in that particular case as to whether such an order made by the Registrar under section 60 of the Act referring the disputes to an arbitrator is open to challenge by filing a revision under section 78 of the Act. Hence, this judgment is of no help to support of the order made by respondent No. 1 in the present case. Counsel for respondent No. 4 has then made a reference to section 80 of the Act which confers revisional power on the Lt. Governor in proceedings in which no appeal lies, to the Lt. Governor. I do not understand how the provisions of section 80 could take away the impact of section 78(6). The provisions of section 78(6) give power to the Tribunal to call for any record of any proceedings in which an appeal lies to it for revising the order made in such proceedings and make such orders as are necessary to be made. Admittedly, the proceedings initiated by respondent No. 4 before the Registrar are amenable to the Tribunal by way of an appeal after a final order was to be made by the arbitrator and thus the Tribunal could revise any order made during the proceedings. Hence, there is no escape from reaching the irresistible conclusion that the order of the Registrar made under section 60 of the Act by which he referred the disputes to the arbitrator was open to challenge by filing a revision before respondent No. 1, the Tribunal, under section 78(6). Respondent No. 1 was not right in rejecting the civil revision by holding that he had no power to examine the said order under section 78(6). Hence, it is necessary to set aside the said order and direct respondent No. 1 to decide the revision filed by the petitioner on merits. Counsel for respondent No. 1 to decide the revision filed by the petitioner on merits. Counsel for respondent No. 4 has tried to argue that the petitioner had no locus standi to file the revision. Liberty is given to respondent No. 4 to urge such a point before respondent No. 1 during the hearing by the Tribunal. It is not necessary to examine the correctness or otherwise of the order made by respondent No. 2 because it would be within the competence of respondent No. 1 to examine the legality or illegality of the order made by respondent No. 2.

9. I allow the writ petition and make the rule absolute and quash the order dated October 9, 1987, copy of which is annexure VI to the petition, passed by respondent No. 1 and direct that respondent No. 1 shall decide the revision on merits, including the plea of respondent No. 4 as to whether the petitioners have locus standi to file the revision. In view of the peculiar facts of the case, I leave the parties to bear their own costs.