Telangana High Court

V.Shrvan Kumar vs Lt.Col.S.B.Sharma on 13 October, 2023

Bench: Alok Aradhe, N.V.Shravan Kumar

       THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
                                         and
        THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR
                           Writ Appeal No.922 of 2010
JUDGMENT: (Per the Hon'ble the Chief Justice Alok Aradhe)

        Heard Mr. Kowturu Pavan Kumar, learned counsel for

the appellant and Mr. R.S.Ahluwalia, learned counsel for

respondent No.1.


2.      This intra court appeal emanates from an order

dated 27.10.2010, passed by a learned Single Judge, by which

writ petition viz., W.P.No.3081 of 2008, preferred by the

appellant, has been dismissed.


3.      Facts

giving rise to filing of this appeal briefly stated are

that, respondent No.1 is a member of Army Cooperative

Housing Society Limited (briefly 'the Society' hereinafter),

who was allotted Flat No.73 in Sector-A, AWHO Colony,

Secunderabad (briefly 'the flat' hereinafter). On 12.10.1997,

respondent No.1 entered into an agreement for sale of the flat

to the appellant. Respondent No.1 did not complete the sale ::2::

transaction. Thereupon, the appellant raised a dispute before

the Arbitrator/Divisional Co-operative Officer. The

Arbitrator/ Divisional Co-operative Officer, by an award

dated 19.05.2004, directed the appellant to pay the balance

sum of Rs.6,50,000/- together with interest @ 8% within

fifteen days and on such payment, respondent No.1 was

directed to execute a sale deed in respect of the flat.

4. Aggrieved by the direction to pay interest @ 8%, the

appellant filed an appeal before the Andhra Pradesh

Cooperative Tribunal (briefly 'the Tribunal' hereinafter).

However, the Tribunal, instead of confining itself to the

grievance of the appellant with regard to payment of

interest @ 8%, set aside the award passed by the Arbitrator/

Divisional Co-operative Officer, and, in totality, held that the

Arbitrator/Divisional Co-operative Officer has no jurisdiction

to entertain the dispute relating to specific performance of

agreement of sale in respect of an immovable property.

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5. The appellant challenged the order dated 26.11.2007

passed by the Tribunal in the aforesaid writ petition.

6. Learned Single Judge of this Court, by placing reliance

on a judgment of a Division Bench of this Court in

M.Venkata Ramana v. A.P.Co-operative Tribunal 1,

inter alia held that the Arbitrator/Divisional Co-operative

Officer had no jurisdiction to entertain the dispute relating to

specific performance of the agreement of sale. Accordingly,

the writ petition was dismissed.

7. In the aforesaid factual background, this appeal has

been filed.

8. Learned counsel for the appellant has invited the

attention of this Court to Section 76(4) of the Telangana

Co-operative Societies Act, 1964 (briefly 'the Act' hereinafter)

and submitted that the Tribunal ought to have appreciated

that the scope in the appeal was confined only to examine the

2010(4) ALT 34 (D.B.) ::4::

validity of payment of interest @ 8%. It is further submitted

that the Tribunal has exceeded its jurisdiction in setting aside

the award passed by the arbitrator in its entirety. It is

contended that in an appeal filed by the appellant, the order

passed in favour of the appellant could not have been set aside

in entirety.

9. On the other hand, learned counsel for respondent

No.1 has submitted that any order passed without jurisdiction

is nullity. It is further submitted that the Arbitrator had no

jurisdiction to grant the relief of specific performance of the

contract and therefore, the Tribunal has rightly set aside the

order passed by the Arbitrator. It is further submitted that, in

exercise of powers under Article 226 of the Constitution of

India, the order passed by the Tribunal has been upheld,

which does not call for any interference in this intra court

appeal.

10. We have considered the submissions made on both

sides and have perused the record.

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11. The solitary question, which arises for consideration in

this appeal is, whether, in an appeal preferred by the appellant

against the award dated 19.05.2004, in which the grievance of

the appellant was confined only to payment of interest @ 8%,

the award, in entirety, could have been set aside.

12. Section 76 of the Act provides for an appeal and the

same is extracted below for the facility of reference:

76. Appeal:- (1) Any person or society aggrieved by any decision passed or order made under Section 6, Section 9A, Section 9B, Section 9C, Section 12A, Section 13, [xxx], Section 16, Section 17, Section 19, Section 21, Section 21A, Section 21AA, Section 23, sub- section (3) of Section 32, Section 34, Section 34A, Section 60, Section 62, Section 64, Section 66, Section 70, Section 71, Section 73 and Section 117 may appeal to the Tribunal :

Provided that nothing in this sub-section shall apply to any order or withdrawal or transfer of a dispute under sub-section (3) of Section 62.

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(2) On a reference made by the Registrar of Cooperative Societies, the Tribunal shall call for and examine the records of any proceeding which is appealable to it for the purpose of satisfying itself as to the legality or propriety of any decision or order passed and where it appears to the Tribunal that any such decision or order should be modified, annulled or reversed, the Tribunal may pass such order thereon as it may deem fit:

(3) Any appeal under sub-section (1) shall, subject to the other provisions of this Act, be preferred within sixty days from the date of communication to the appellant of the decision, refusal or order complained of but the Tribunal may admit an appeal preferred after the said period of sixty days, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within the said period.

(4) In disposing of an appeal under this section, the Tribunal may, after giving the parties an opportunity of making their representations, pass such order thereon as it may deem fit.

(5) The decision or order of the Tribunal on appeal shall be final.

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(6) The Tribunal may pass such interim orders pending the decision on the appeal as may deem fit.

(7) The Tribunal may award costs in any proceedings before that authority to be paid either out of the funds of the society or by such party to the appeal as the Tribunal may deem fit.

13. Thus, it is evident that while disposing of an appeal

preferred under Section 76 of the Act, the Tribunal may, after

giving the parties an opportunity of making representation,

pass such orders thereon as it may deem fit.

14. The pari materia provision viz., Section 33(4) of the

Income Tax Act, 1922 (briefly 'the IT Act' hereinafter) reads

as under:

The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such orders to the assessee and to the Commissioner.

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15. Section 33(4) of the IT Act was interpreted by a

Division Bench of this Court in Commissioner of Income

Tax v. Krishna Mining Company 2 and in para 35, it was

held as under:

"Since the present case is governed by the Act of 1922, we have to consider Section 33 of the Act. The language of Section 33(4) clearly indicates that the Appellate Tribunal may or can pass orders "thereon" on appeal "as it thinks fit". Although the powers of the Tribunal are thus expressed in very wide language, the word "thereon" restricts the use of such wide powers of the Tribunal to the subject-matter of the appeal. What plainly follows is that the Tribunal's powers are limited to passing such orders as it thinks fit "on the appeal". In other words, the powers of the Tribunal are limited to the subject-matter of the appeal.

16. Thus, the Division bench of this Court, after

interpreting the pari materia provision, held that the powers of

the Tribunal are restricted to the subject matter of the appeal.

(1977) 107 ITR 702 (AP) ::9::

17. In the instant case, the subject matter of the appeal

before the Tribunal was payment of interest @ 8% p.a.,

Therefore, the Tribunal ought to have decided the issue with

regard to payment of interest @ 8% p.a., as its powers were

confined to the subject matter of the appeal.

18. However, the Tribunal travelled beyond the scope of its

powers under Section 33(4) of the IT Act and has set aside the

award in its entirety. However, the aforesaid aspect of the