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Judgment
Jayant Patel, J.—As in both the matters, more or less common facts and questions arise for consideration, they are being considered by this common judgement.
In Special Civil Application No. 5409 of 2005, the petitioner''s challenge is against the order dated 24.3.2005 passed by the respondent No. 1 in revision application No. 5/2005, whereby the registration granted in favour of the petitioner under the Gujarat Cooperative Societies Act (hereinafter referred to as ''the Act'' for short) has been cancelled. It appears that as per the petitioner, it had applied for registration under the Act and such registration came to be granted on 14th of July/August, 2003 and as per the petitioner, the society had started functioning and it got enrolled about 105 members. When it was functioning, after a period of 14 months, respondent No. 4 preferred revision application before the Additional Registrar(Appeals), though statutory appeal u/s 153 of the Act could have been filed with the leave of the Appellate Authority, had the respondent No. 4 been aggrieved by the said order. It appears that the Additional Registrar (Appeals) heard the revision and has allowed the revision by setting aside the order passed by the competent authority for registration of the petitioner Society. It is the case of the petitioner that the hearing before the Additional Registrar (Appeals) had taken place on the aspects of locus standi and the maintainability of revision, but the Additional Registrar (Appeals) has allowed revision, though merits of the matters were not argued at the time of hearing. It is under these circumstances, the present petition before this Court.
Special Civil Application No. 5411 of 2005 is preferred for challenging another order dated 24.3.2005 passed by the Additional Registrar (Appeals) in Revision Proceedings No. 6/2005, more or less on the same facts inasmuch as, instead of preferring appeal, revision was preferred, that too, after a period of about 27 months from the date of registration and the certificate and after functioning of the petitioner as society and enrollment of its members. The contentions of the petitioner for challenging the said order are the same, but since the Additional Registrar (Appeals) allowed the revision and set aside the order passed by the competent Authority for registration of the petitioner dated 18.8.2002, another petition by another Cooperative Society.
Heard Mr.Baiju Joshi, learned Counsel appearing for the petitioners in both the petitions, Mr.H.K. Patel, learned AGP for the respondent State Authority Respondent No. 1 in both the matters, Mr. Ketan Shah with Mr.Tushar Mehta, learned Counsel for respondent No. 4 in SCA No. 5409 of 2005 and Mr.Vaghela, learned Counsel for respondent No. 5 in SCA No. 5411 of 2005.
It appears that on the factual aspects, there is no dispute inasmuch as the matter was pertaining to the registration of a Society and that the appeal against the said decision was maintainable, and such appeal was to be filed within a prescribed period of limitation and has not been filed. It is also undisputed position that instead of preferring the appeal, may be with the leave to prefer appeal or with the application for condonation of delay, if any, the revision is filed for invoking the jurisdiction of the very authority i.e. Additional Registrar (Appeals). This Court, in the case of Ucharapi Seva Sahakari Mandli Limited thro. President and Anr. v. State of Gujarat and Ors. reported in 2003(1) GCD 185 (Guj) had an occasion to consider the question as to whether the revisional jurisdiction could be invoked in a case where statue provides express remedy of preferring appeal. It was observed that when the statutory remedy of appeal is provided normally it was necessary for the authority to relegate the party to prefer appeal and not to entertain the revision. The Court further observed that since the appeal, in that case, was not preferred and the revision was preferred, but the revision was already decided on merits, the Court relegated the party to prefer appeal and the status quo ordered to be maintained.
Mr.Vaghela, learned Counsel appearing for respondent No. 5 in SCA No. 5411 of 2005 contended that in the said case the authority having powers to hear the appeal and the revision were different and straightway the revision was preferred before the State Government, which was entertained, instead of preferring the appeal before the Additional Registrar (Appeals), whereas in the present case, the Additional Registrar (Appeals), who has exercised the revisional power is also having the appellate power, therefore, the same view may not be taken by this Court. He also submitted that the revisional jurisdiction is concurrent and simultaneous and would be wide enough to cover all decisions. In furtherance to his submission, he relied upon the language of the statute.
In order to examine the contention, reference to the provisions of Section 153 as well as Section 155 of the Act would be relevant, which read as under:
(1) An appeal against an order or decision under Sections 4, 9, 11, 13, 17, 19, 36, 81 and 160 shall lie,-
(a) if made or sanctioned or approved by the Registrar, or an Additional or Joint Registrar on whom powers of the Registrar are conferred, to the State Government.
(b) if made or sanctioned by any person other than the Registrar, or an Additional or Joint Registrar on whom the powers of the Registrar are conferred, to the Registrar.
(2) An appeal against an order of a liquidator u/s 110 shall lie-
(a) to the State Government if the order was made with the sanction or approval of the Registrar, and
(b) to the Registrar in any other case.
(3) An appeal against an order or decision under sections 82, 90, 93 and any order passed by the Registrar for paying compensation to a society, and any other order for which an appeal to the Tribunal has been provided under this Act. shall lie to the Tribunal.
(4) An appeal under sub-section (1), (2) or (3) shall be filed within two months of the date of the communication of the order or decision.
(5) The procedure to be followed in presenting and disposing of appeals under this section or under any other provisions of this Act shall be such as may be prescribed.
(6) Save as provided in this Act, no appeal shall lie against any order, decision or award passed in accordance with this Act; and every such order, decision or award shall be final, and where any appeal has been provided for, any order passed on appeal shall be final and no further appeal shall lie against it.
XXX
The State Government and the Registrar may call for and examine the record of any inquiry of the proceedings of any other matter of any officer subordinate to them, except those referred to in sub-section (9) of Section 150, for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer. If in any case, it appears to the State Government, or the Registrar, that any decision or order or proceedings so called for should be modified, annulled or reversed, the State Government or the Registrar, as the case may be, may after giving persons affected thereby an opportunity of being heard pass such order thereon as it or he may deem just.
If the very authority namely the Registrar has the powers of entertainment of the appeal as well as of the revision, such powers cannot be read as over-lapping to one another, but has got to be reconciled. Court cannot, in normal circumstances, proceed on the basis that legislature was not mindful of the existence of both the provisions on the statute book. Therefore, conjoint reading and upon reconciliation, so as to allow the statute to operate, would make it clear that in a case where the appeal is competent, the appeal should be preferred, if any party is aggrieved by the decision. In a case where the appeal is not competent, the aggrieved party may resort to the revisional jurisdiction of the same authority. Even otherwise also, the appellate power is wider jurisdiction for scrutiny of the decision in comparison to the revisional jurisdiction. If the contention of the learned Counsel for the respondent No. 5 is accepted that in a case where the appeal is maintainable, the revisional power can also be exercised, such may result into making the provisions of appeal as nugatory, which cannot be done in the present case, on account of the conjoint reading of both the aforesaid sections. Therefore, such contention raised on behalf of respondent No. 5 by the learned Counsel cannot be accepted and it has to be read that when the appeal is competent, the provisions of Section 153 of the Act would be attracted for invoking the jurisdiction and the revisional jurisdiction would be available to the aggrieved party only when the appeal is not competent. But it may also be observed that in the event the appeal is not preferred by any aggrieved or private party, it may be open to the revisional authority itself to exercise the suo motu power if such case is made out.
The learned Counsel for the respondent No. 5 next contended that the respondent No. 5 was not party in the proceedings before the registering authority namely Assistant Registrar, who has registered the petitioner society, therefore, it could not prefer the appeal. He also contended that the appeal, if it was to be preferred, the period had expired, therefore, the revisional jurisdiction being wide enough to cover all aspects and there is no express period of limitation, the revision was rightly preferred by the respondent No. 4.
I am afraid such contention can be accepted. There are two reasons; one is that even if the aggrieved person was not party before the lower authority, it can prefer the appeal, may be with the leave of the appellate authority or otherwise, if it is satisfactorily demonstrated that it is aggrieved by the impugned order or the action; and the second is that merely because the limitation period had expired, is no ground for bypassing the express remedy. At the most, such party may be required to explain the delay, if any, and to show sufficient cause of not preferring the appeal within the prescribed period. Even otherwise also, a thing which cannot be directly done would not be permitted to be done indirectly. Therefore, such contention cannot be countenanced.
At this stage, Mr. Vaghela, learned Counsel appearing for the respondent No. 4 contended that as was permitted in the above referred decision of this Court in the case of Ucharapi Seva Sahakari Mandli Limited thro. President and Anr. v. State of Gujarat and Ors. (supra), respondent No. 5 shall prefer the appeal and the interim relief may be continued for some time.
Whereas, Mr. Joshi, learned Counsel appearing for the petitioners contended that respondent No. 4 even if it prefers the appeal, may have to explain the delay for the period from the expiry of the limitation until the revision was preferred and at the most the period pending the petition may be leniently viewed.
It is true that the appeal provides for express period during which the power is to be invoked, but at the same time, if there is any delay, the same will have to be explained to the appellate authority, as the provisions of the statute are to be read with the enabling power for condonation of delay and the said aspect, in any case, will have to be finalized upon the material available before the appellate authority. At that stage, the petitioner may contend the creation of the irreversible situation after the registration of the society, until the revision was preferred. It appears to the Court that it is not necessary for this Court to finally express the view on the said aspects, as the appeal is yet to be preferred and application for condonation of delay, if any, is also yet to be finalized.
Hence, in SCA No. 5411 of 2005, the following orders:
(a) The impugned order passed by the Additional Registrar (Appeals) is quashed and set aside with the direction that it will be open to respondent No. 4 to prefer appeal and also to explain the delay in preferring the appeal and if required, with the application for leave to prefer appeal. If such appeal is filed, the rights and contentions of both the sides shall remain open.
In SCA No. 5409/2005, in view of the reasons recorded hereinabove, the impugned order deserves to be quashed and set aside. However, the learned Counsel for the respondent No. 4 made statement at the bar that on 16.8.2005, a note was filed by Mr.Tushar Mehta, stating that he has been relieved as Advocate, therefore, no submissions are made.
Be that as it may, when on merits of the case, the impugned order deserves to be quashed and set aside, it would not be a case for taking a different view. However, if respondent No. 4, is so desirous, it may adopt the same course as being made permissible to the respondent No. 5 of SCA No. 5411 of 2005.
Hence, in SCA No. 5409 of 2005, the impugned order passed by the Additional Registrar (Appeals) dated 24.3.2005 is quashed and set aside with the observations as made hereinabove.
The petitions are allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs.