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Home > SC > Civil Law > Co-operative Societies Act > JAI MAHAVIR CO-OPERATIVE HOUSING SOCIETY LTD. Vs. PANCHAL KESHAVLAL NARBHERAM & ORS.



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JAI MAHAVIR CO-OPERATIVE HOUSING SOCIETY LTD. Vs. PANCHAL KESHAVLAL NARBHERAM & ORS.

Posted on 14 May 2009 by jyoti

Title

JAI MAHAVIR CO-OPERATIVE HOUSING SOCIETY LTD. Vs. PANCHAL KESHAVLAL NARBHERAM & ORS.



Coram

OZA, G.L. (J)



Act

Co-operative Societies Act



Subject

Gujarat Co-operative Societies Act, 1961--Sections 96
and 150-Order passed by the Registrar--Whether subject to
revision by Tribunal--Whether Registrar competent to review
his earlier decision.



Citation

1987 AIR 1513, 1987( 2 )SCR 894, 1987( 3 )SCC 425, 1987( 1 )SCALE777 , 1987( 2 )JT 576



Head Notes

The first respondent instituted a proceeding under
Section 96(1) of the Gujarat Cooperative Societies Act,
1961, for setting aside the Resolution, expelling him from
the membership of the appellant Society. The said resolution
had been duly approved by the Registrar of Societies under
Section 36 of the Act. The dispute was referred by the
Registrar under Section 98(1) of the Act to his nominee for
a decision, who dismissed the claim.
The Tribunal allowed the appeal of first respondent and
remanded the matter to the Registrar's nominee for a fresh
decision. During the trial, upon an application made by the
appellant Society under sub-section (2) of Section 96 that
the dispute did not survive as the expulsion had already
been decided in the collateral proceedings and the Registrar
had accorded his approval under Section 36 of the Act, the
District Registrar held that the first respondent was pre-
cluded from contending that the impugned Resolution was
illegal since he had not preferred any appeal against the
approval by the Registrar, that the doctrine of res judicata
was attracted and, therefore, there was no dispute in exist-
ence between the parties.
This order was taken up in revision under Section 150
sub-clause (9) of the Act before the Tribunal, which held
that the District Registrar had no jurisdiction to re-open
the question as to whether or not the matter referred by
first respondent was a dispute within the meaning of sub-
section (1) of Section 96 at the subsequent stage, and
having already decided that the matter constituted a dispute
under Section 96(1) at an earlier stage, the powers under
sub-section (2) of Section 96 were exhausted and he was not
competent to review his earlier decision.
In appeal, the High Court held that the Tribunal was
right in holding that the Registrar had no jurisdiction to
revise or review his
earlier decision that the dispute raised by the first re-
spondent fell within the ambit of the description of dispute
within the meaning of sub-section (1) of Section 96, and
that it had revisional jurisdiction; and also granted spe-
cial leave to appeal.
In appeal before this Court, it was contended on behalf
of the appellant that when a dispute was referred to the
Registrar, and he ultimately gave a decision on merits it
was no doubt appealable but when the Registrar entertained
the dispute and sent it to his nominee, that was an order
against which a revision lay to the Tribunal.
Dismissing.the appeal, this Court,
HELD: 1. Clause (9) of Section 150 confers jurisdiction
on the Tribunal to call for and examine the record of any
proceeding. The word 'proceeding' here is qualified by the
phrase, in which appeal lies to it- After final disposal of
these proceedings i.e. decision of the dispute by the Regis-
trar or by his nominee, an appeal will lie to the Tribunal
and, therefore, the High Court was right in holding that the
Tribunal had jurisdiction to call for and examine the record
of such proceedings. [899D-E]
The phrase 'any proceedings in which an appeal lies to
it' in clause (9) of Section 150 makes it clear that if the
proceedings where the final order is appealable, then it
could not be said that these are the proceedings where an
appeal lies to the Tribunal, and it is in these proceedings
that the jurisdiction has been conferred on the Tribunal to
call for the record and examine the matter. [899E-G]
2. When the respondent submitted his dispute to the
Registrar and the Registrar, after examining the matter,
came to the conclusion that it was a dispute which could be
entertained within the scope of Section 96 and, therefore,
referred it to his nominee for decision, there is no doubt
that the Registrar exercised jurisdiction under Section 96
and, therefore, the High Court was right in coming to the
conclusion that once the Registrar took this decision, he
had no power to review his order. [900A-C]
Krishnarao Bakaramji Hadge v. The State of Maharashtra,
[1969] B.L.R., 150 referred to.



Judgment Made On

04/10/1987

JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1583 (N)
of 1973.
896
From the Judgment and Order dated 6.4.1973 of the Guja-
rat High Court in Special Civil Appeal No. 494 of 1971.
Raja Ram Aggarwal, Mr. M.V. Goswami and M.M. Kashatriya
for the Appellant.
Vimal Dave and Mrs. H. Wahi for the Respondents.
The Judgment of the Court was delivered by
OZA, J. This appeal is by certificate granted by the
High Court of Gujarat under Art. 133 of the Constitution of
India by its order dated 6.4.73. The High Court by its order
dated 6.4.73 dismissed the petition filed by the appellant
questioning the correctness of the order of the Gujarat Co-
operative Tribunal.
The facts necessary for disposal of this appeal are that
appellant is a co-operative housing society registered with
the Registrar of Cooperative Societies Gujarat under the
provisions of the Act. It is alleged that this Society was
formed on 2nd May 1961 with the object of providing housing
facilities to its members. Respondent No.1 Panchal Keshavlal
Narbheram was a founder member of this Society alongwith 11
others. It is alleged that the conduct of respondent No.1
was found to be detrimental to the interest of the Society
and its working and the Society therefore invoked the provi-
sions of Section 36 of the Act, passed a resolution dated
19.6.65 to expel respondent No.1 from the membership of the
Society. A further opportunity to show cause was given to
the respondent and on November 28, 1965 the appellant socie-
ty passed a resolution expelling respondent No.1 from the
membership of the Society.
This resolution of the Society was duly approved by the
Registrar of Societies as required under Sec. 36 of the said
Act on 13.4.66.
On 17.2.66 respondent No.1 instituted another proceed-
ings under Sec. 96(1) with the Registrar of Co-operative
Societies seeking relief of setting aside of the resolution
passed by the Society against respondent No. 1. The Regis-
trar entertaining the dispute and exercising powers con-
ferred under Sec. 98(1) referred the dispute for decision to
his nominee and out of these proceedings ultimately the
present appeal arises.
On July 16, 1966 the Registrar's nominee dismissed respond-
ent
897
No. 1's claim by his order dated 16.7.66. Thereafter re-
spondent No.1 carried the matter to the Tribunal by way of
an appeal i.e. Appeal No. 119 of 1966.
That on August 25, 1967 the Tribunal allowed the appeal
of the respondent and remanded the matter to the Registrar's
nominee for a fresh decision in accordance with law.
After remand the parties proceeded with the trial and
adduced oral evidence before the Registrar's nominee but
during the trial on 16.2.70 the appellant-society made an
application under sub-sec. (2) of sec. 96 to the District
Registrar that the question relating to the expulsion of
respondent No. 1 had already been decided in the sense that
in the collateral proceedings the Registrar had recorded his
approval under Sec. 36 of the Act to the action taken by the
Society and therefore the dispute did not survive. On this
application the District Registrar heard the parties and
came to the conclusion that respondent No. 1 was precluded
from contending that the impugned resolution expelling him
from the membership of the society was illegal inasmuch as
he had not preferred any appeal against the decision of the
Registrar according his approval to the action taken by the
Society under sec. 36.
The District Registrar was of the opinion that doctrine
of resjudicata was attracted and therefore there was no
dispute in existence between the parties. This order passed
by the District Registrar on 19.6.70 was taken up in revi-
sion under Sec. 150 sub-clause 9 of the Act to the Tribunal.
The Tribunal came to the conclusion that the District Regis-
trar had no jurisdiction to re-open the question as to
whether or not the matter referred by respondent No. 1 was a
dispute within the meaning of sub-sec. (1) of Sec. 96 at
this subsequent stage. The view taken was that having al-
ready decided that the matter constituted a dispute under
Sec. 96(1) at an early stage before he made a reference to
the Registrar's nominee in exercise of powers under Sec. 97.
The powers under sub-sec. (2) of Sec. 96 were exhausted and
it was not competent for him to review his earlier decision.
Accordingly the Tribunal by its order dated 6.2.71 allowed
the revision petition, set aside the order passed by the
District Registrar on June 25, 1970 and directed the Regis-
trar's nominee to proceed with the decision of the matter
expeditiously having regard to the fact that the dispute is
an old one having its origin in a resolution passed by the
appellant-society on November 28, 1965.
898
The appellant-society feeling aggrieved by the aforesaid
decision invoked the jurisdiction of the High Court under
Articles 226 and 227 of the Constitution of India. In this
petition the appellant raised mainly two contentions: (i)
that the Tribunal was in error in holding that Registrar was
not competent to review his earlier decision that the matter
referred to by the respondent No.1 was a 'dispute' within
the meaning of sub-section (1) of Sec. 96 of the Act; (ii)
that the Tribunal had no revisional jurisdiction against an
order passed under Sec. 96(2) of the Act.
On the first question the High Court came to the conclu-
sion that the Tribunal was right in holding that Registrar
had no jurisdiction to revise or review his earlier decision
wherein the Registrar came to the conclusion that the dis-
pute raised by respondent No. 1 fell within the ambit of the
description of dispute (within the meaning of sub-sec. (1)
of Sec. 96). On the second question the High Court took the
view that the Tribunal had revisional jurisdiction.
The High Court considered the question of leave to
appeal to this Court and granted leave and framed following
question for decision:
"In an order passed by the Registrar in exer-
cise of the powers under sub-section (2) of
Sec. 96 of Gujarat Cooperative Societies Act,
1961 subject to revision by the Tribunal in
exercise of the powers under Section 150(9) of
the Act?"
In pursuance to the certificate granted by the High Court
the present appeal has been filed by the appellant.
Learned counsel appearing for the appellant contended
that although when a dispute is referred to the Registrar
and he ultimately gives decision on merits that is no doubt
appealable but when the Registrar entertains the dispute and
sends it to his nominee that is not an order against which a
revision can lie to the tribunal. Learned counsel placed
reliance on the decision in Krishnarao Bakaramji Hadge v.
The State of Maharashtra, [1969] B.L.R. 150 and contended
that the Tribunal had no revisional jurisdiction.
The High Court in the impugned judgment after consider-
ing this decision and the provisions contained in Sec. 97
came to the conclusion that when a dispute is referred to
the Registrar under sec. 96 and
899
the Registrar entertains the dispute under Sec. 96 and
ultimately finally disposes it of against the decision on
the merits there is an appeal to the Tribunal according to
Sec. 97 which is similar to Sec. 101 of the present Gujarat
Co-operative Societies Act, 1961 and in view of this the
learned Judges of the High Court came to the conclusion that
under clause 9 of Sec. 150 the Tribunal has revisional
jurisdiction in a matter an appeal lies to it. Clause (9) of
Sec. 150 reads:
"(9) The Tribunal may call for and examine the
record of any proceeding in which an appeal
lies to it, for the purpose of satisfying
itself as to the legality or propriety of any
decision or order passed. If in any case, 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 just."
This confers jurisdiction on the Tribunal to call for and
examine the record of any proceeding. The word 'proceeding'
here is qualified by the phrase in which an appeal lies to
it. It is not disputed that after final disposal of these
proceedings i.e. decision of the dispute by the Registrar or
by his nominee an appeal will lie to the Tribunal and there-
fore in the impugned judgment the Division Bench of the
Gujarat High Court took the view that the Tribunal has
jurisdiction to call for and examine the record of such
proceedings. The judgment of the Bombay High Court on which
reliance is placed refers to Sec. 149 sub-clause 9 of the
Maharashtra Co-operative Societies Act, 1960. It is no doubt
true that the phrase 'any proceedings in which an appeal
lies to it' is identical in the two statutes i.e. Sec. 150
clause 9 of the Gujarat Co-operative Societies Act and sub-
clause 9 of Sec. 149 of the Maharashtra Co-operative Socie-
ties, Act, 1960. This language makes it clear that if the
proceedings where the final order is appealable then it
could not be said that these are the proceedings where an
appeal lies to the Tribunal and it is in these proceedings
that the jurisdiction has been conferred on the Tribunal to
call for the record and examine the matter. In this view of
the matter, in our opinion, the view taken by the Division
Bench of the Gujarat High Court in the present case appears
to be correct and the High Court was fight in coming to the
conclusion that the Tribunal had jurisdiction to call for
and examine the record i.e. exercise revisional jurisdic-
tion. Although this was the only question which was stated
in the certificate issued by the High Court, learned counsel
also attempted to contend that the view taken by the High
Court on the first question as to whether the Registrar is
not competent to review his earlier decision but in our
opinion even on
900
that ground the view taken by the High Court appears to be
correct.
When the respondent submitted his dispute to the Regis-
trar and the Registrar after examining the matter came to
the conclusion that it was a dispute which could be enter-
tained within the scope of Sec. 96 and therefore referred it
to his nominee for decision. It could not be doubted that
the Registrar exercised jurisdiction under Sec. 96 and came
to the conclusion and therefore the High Court was right in
coming to the conclusion that once the Registrar takes this
decision he has no power to review his order. In this view
of the matter we see no reason to entertain this appeal. The
appeal is therefore dismissed. In the circumstances of the
case parties are directed to bear their own costs.
N.P.V. Appeal dis-
missed.
901





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