Kifayatullah Khan vs Registrar of Co-operative Societies and Others

Srinivasachari, J.—This is an application under Article 226 of the Constitution invoking our jurisdiction for the issue of a Writ of Certiorari to quash the award of the Registrar of the Co-operative Societies, purporting to have been made u/s 42-A of the Hyd. Co-operative Societies Act, Act II of 1323. The Petitioner, it would appear, was the Tehsildar of the Samustan of Palavancha from 1354 F. to 1356 F. and in his capacity as the Tehsildar was also the Vice-President of the Agricultural Co-operative Association of the said place.

In Farwardhi 1358 F. the Petitioner was suspended from service because of allegations of misappropriation of the funds of the Society and an enquiry was instituted with regard to the alleged defalcation. Finally he was absolved of the charges made against him.

The Society then made a claim before the Asst. Registrar, Co-operative Societies, Warangal for the recovery of a sum of Rs. 25,943-13-9 alleging that the Society had suffered loss to the extent of that amount because of the misconduct of the Petitioner.

The proceedings went on before the Arbitrator viz. the Asst. Registrar and finally he passed an award on 2-5-1953 holding that the sum claimed was due and payable by the Petitioner. This order was communicated to the Petitioner on 2-11-1953.

The main contention of the learned advocate for the Petitioner is that the award was illegal because a reference could not have been made under the provisions of the Co-operative Societies Act to the Asst. Registrar as the matter in question did not fall within the purview of Section 42A of the Act. The learned advocate elaborated his argument by saying that it is only where it is a matter touching the business of the Society wherein there is a dispute between the Society and one of its members or officers that a reference could be made under the relevant provision.

In this case as it happened the Petitioner ceased to be an officer of the Society on the date when the proceedings started because he was the Tehsildar of Palavancha only during 1354 F. to 1353 F. and he was suspended in Farwardhi 1358 F. and these proceedings started only in 1361 F. It would be useful to refer to the provisions of the Co-operative Societies Act which relate to the reference being made.

Section 42-A of the said Act pertains to the settlement of the matters in dispute between the Society and its members and other officers connected with it. The Act contemplates settlements of disputes relating to the business of the Society that may arise (a) between the members (past or present) on the one hand and the Society on the other. Of course this would include those who claim to be such members. A close scrutiny of the section would show that while the first and second part speak of disputes between the Society on the one hand and the members on the other, whether they be present or past, part 3 only speaks of the disputes between the Society and its officers.

It does not specifically mention past officers. Relying upon this clause, it was argued that inasmuch as the Petitioner had ceased to be an officer of the Society in 1356 F. he could not be regarded as an officer within the meaning of Section 42-A of the Act and if he was not covered by Section 42-A, then the dispute would be outside the purview of the arbitration of the Registrar and if he decided such a matter it would be deemed to be without jurisdiction.

This argument in our opinion is not without force for, a plain reading of the section and its clauses would imply clearly that a past officer is not included among the persons whose dispute with the Society could be taken cognizance of by the arbitrator; We may straightway point out that it, is a well-established principle of law relating to the construction of statutes that where the language of ah Act is clear the court is bound to give the words their plain meaning.

It is not the business of the court to usurp the functions of the Legislature by straining the meaning to remedy the defects of the law although in the opinion of the court the particular provision has been ill-drafted. It may also be pointed out that the court is not concerned with the policy involved or with the result that may ensue in construing enacted words.

In this connection we would refer to the decision of the Federal Court in the case of AIR 1945 48 (Privy Council) A reading of the particular provision in the Act prima facie does lend support to the contention of the advocate for the Petitioner viz. that the alleged dues from the Petitioner could not be gone into by the Registrar for the simple reason that the Petitioner ceased to be an officer of the Society on the date of the arbitration.

But it has become unnecessary for us to deal with the question as to whether the Asst. Registrar had jurisdiction to arbitrate about the dispute under the provisions of Section 42-A of the Hyderabad Co-operative Societies Act, for we find that in the case before us the Petitioner had invoked the jurisdiction of the Asst. Registrar and the proceedings were initiated at his instance. The Government advocate produced before us the file relating to the proceedings before the Asst. Registrar.

The record would show that the Petitioner invoked the jurisdiction of the Asst. Registrar by way of arbitration. He filed an application on 26-6-1950 requesting that an arbitrator be appointed and the matter settled. This application was made admittedly after he ceased to be an officer of the Society. This request of his was renewed on 5-8-1950 and on 24-8-1950 referring expressly to Section 42-A of the Act, the Petitioner prayed that the matter might be settled.

On the strength of this application a reference to arbitration was made and the proceedings, began. It is significant that in the enquiry before the Asst. Registrar the Petitioner never questioned the jurisdiction of the arbitrator but merely asked for time.

The proceedings had started in 1950 and went on till 1953 and finally the award was given on 2-5- 1953. The Petitioner filed an appeal before the Registrar which was dismissed as being time-barred. Aggrieved by the said order the Petitioner has now come'' up before us invoking our jurisdiction under Article 226.

It is therefore abundantly clear that the Petitioner never raised any objection to the jurisdiction of the Asst. Registrar but acquiesced in it. In so far as the question of jurisdiction is concerned, it is well established that where the court or tribunal suffers from an inherent want of jurisdiction over the subject matter of dispute the mere submission to the jurisdiction of the court would not confer jurisdiction, neither acquiescence nor submission would clothe the court with jurisdiction.,

The orders of such courts or tribunals would be nullities. It, therefore, follows that where there was inherent want of jurisdiction the fact that, the Petitioner submitted to the jurisdiction without demur would not prevent his attacking the validity of the award.

It has to be mentioned here that this is an application for the issue of a Writ of Certiorari. Certiorari, as is well known, goes to the jurisdiction of the authority determining the case. It does not go to any error of judgment that may have been committed in the exercise of the jurisdiction. Different considerations would arise where a party seeks to attack the validity of an order on the ground of want of jurisdiction in proceedings under Article 226 of the Constitution where he had submitted to the jurisdiction of the tribunal.

The question is whether the Petitioner would be estopped from raising the plea of jurisdiction before us having invoked the Jurisdiction of the tribunal in the previous proceedings. The jurisdiction conferred on this Court by Article 226 of the Constitution is a limited jurisdiction and the power exercisable by the High Court under the above Article is an entirely discretionary one and when the question arises as to whether the court should exercise the discretion in favour of the applicant the court would take into consideration among other circumstances the conduct of the party applying.

In this case the conduct of the Petitioner is manifest that he completely acquiesced in the jurisdiction of the arbitrator and when he found that the decision was against him he now seeks to impugn the validity of the decision on the ground of want of jurisdiction.

It may be said that he was, as it were, sitting on a hedge to take the decision in his favour and if the decision went against him to question the jurisdiction of the authority. We are of opinion that this cannot be allowed. A person invoking the jurisdiction cannot subsequently deny it. In this connection we might refer to the observations of Ashtbery J. in ''Giusti Patents and Engineering Works Ltd v. Maggs 1923 1 Ch. 515 (519) (B) Which are to the following effect:

Where a Plaintiff voluntarily sues in a court that has no jurisdiction he cannot cure his mistake and remove the proceedings by Certiorari.

Likewise are the observations of Channell J. in Rer v. Williams, Ex parte Phillips 1941 1 KB 608 (C). He says:

Where the party grieved has by his conduct precluded himself from taking an objection the court will not permit him to make it.

This is so because the remedy by way of Certiorari is a special and discretionary remedy. The conduct of the applicant would have a very important bearing in considering whether he should be allowed to question the validity of the order.

For all the above reasons we think that this writ petition should be dismissed. It is, therefore dismissed with costs. Advocate''s fee Rs. 50/-.