Managing Director, M.P. State Marketing Federation and Others vs Registrar, Co-operative Societies and Others

Sanjay K. Agrawal, J.—The respondent No. 2/tenderer in terms of agreement entered into between the parties, raised a dispute before the Registrar, Co-operative Societies, under Section 64 of MP/CG Co-operative Societies Act, 1960 (for short, the Act, 1960).

The registrar, Co-operative Societies, in exercise of power conferred under Section 66(3) of the Act, 1960, transferred the said dispute to Assistant Registrar, Sahakari Sansthayen, Rajnandgaon for disposal in accordance with law. Subsequently, Deputy Registrar of Co-operative Society was posted on the said post and ultimately the Deputy Registrar, Co-operative Society passed the order on 09.03.2000 dismissing the claim of respondent No. 2 herein and allowing the counter claim of petitioners herein.

Being aggrieved against the said order, the respondent No. 2 assailed the same before the Registrar, Co-operative Society under the provisions of Section 78 of the Act, 1960. The said appeal was allowed by the Registrar by order dated 09.04.2003. Questioning the legality and validity of said order dated 09.04.2003 passed by the Registrar, this writ petition has been filed by the petitioner under Article 227 of the Constitution of India merely contending that Registrar having delegated its power under Section 66(3) of the Act, 1960, to the Assistant Registrar/Deputy Registrar, could not have heard the appeal against the order of Deputy Registrar as the Deputy Registrar has passed the order being delegatee/nominee of the Registrar and as such, the appeal itself was not maintainable before the Registrar and as such impugned order deserves to be quashed being without jurisdiction and without authority of law.

On rule being issued, counter affidavit has been filed on behalf of respondent No. 2 herein stating inter alia that against the order of Registrar, further remedy of Second Appeal was available to the petitioners, and as such, the writ petition, as framed and filed is not maintainable in law and the same deserves to be dismissed as the petitioners are having efficacious statutory alternative remedy of filing Second Appeal before the appellate forum.

Shri Abhishek Sinha, learned counsel appearing for the petitioners would submit that against the order of Deputy Registrar being nominee or delegatee of Registrar under Section 66(3) of the Act, 1960, the appeal was not maintainable in law and as such the exercise of appellate power by the Registrar was clearly unsustainable and bad in law and the order impugned deserves to be set aside. Arguing further, he would submit that writ petition was entertained on 27.04.2004 and as such the order itself is without jurisdiction and without authority of law, writ petition should not be dismissed at this stage on the ground of availability of alternative remedy.

Shri P.K.C. Tiwari, learned Senior counsel appearing for respondent No. 2 vehemently opposing the submission of petitioners would submit that petitioners having failed to avail the alternative remedy of filing of Second Appeal before the second appellate authority, the writ petition as framed and filed deserves to be dismissed as the question of jurisdiction raised by the petitioners herein can be raised and decided therein before the second appellate authority.

Having heard learned counsel for the parties and having perused the documents, following two questions would arise for adjudication:

� Whether, the writ petition deserves to be dismissed on the ground of availability of efficacious statutory alternative remedy of filing second appeal before the second appellate authority?

� Whether, the appeal before the respondent No. 1 was maintainable in law in view of Section 66(3) of the Act, 1960?"

ANSWER TO QUESTION NO. 1.

From perusal of records, it would appear that instant writ petition was filed and entertained on 27.04.2004 and since then it is pending consideration before this court. In case of Krishan Lal Vs. Food Corporation of India and Others, their Lordships of Supreme Court has held that exhaustion of alternative remedy is not to be insisted where proceedings before the court have been pending for a fairly long time, and held as under:

"18. It is true that there was an arbitration clause in the agreement executed between the parties. It is equally true that, keeping in view the nature of the controversy, any claim for refund of the amount deposited by the appellant could be and ought to have been raised before the Arbitrator under the said arbitration. The fact, however, remains that the High Court had entertained the writ petition as early as in the year 2002 and the present appeals have been pending in this Court for the past ten years or so. Relegating the parties to arbitration will not be feasible at this stage especially when the proceedings before the Arbitrator may also drag on for another decade. Availability of an alternative remedy for adjudication of the disputes is, therefore, not a ground that can be pressed into service at this belated stage and is accordingly rejected." 9. Bearing in mind the principles laid down by their Lordships of Supreme Court in aforesaid cases, if the facts of present case are examined, it would appear that instant writ petition was entertained by this court on 27.04.2004 and since then the petition is pending consideration for last 10 years, and therefore, the writ petition at this stage cannot be dismissed on the ground of availability of alternative remedy.

Determination of this first question leads me to the next question whether against the order passed by the nominee of the Registrar appointed under Section 66(1) of the Act, 1960, appeal would lie to the Registrar or before the Additional Registrar of the Co-operative Society under Section 78 of the Act, 1960.

In order to understand the question so raised, it would proper to notice certain undisputed facts which emerges on the face of records:

"1. That, dispute was raised by the respondent No. 2 under Section 64 of the Act, 1960 in terms of agreement before the Registrar, Co-operative Society.

That, the Registrar by its order dated 05.04.1985, in exercise of power conferred under Section 66(1) of the Act, 1960, transferred the same to the Assistant Registrar for disposal in accordance with law and in place of Assistant Registrar, the Deputy Registrar was posted and in exercise of said power, the Deputy Registrar passed the order on 09.03.2002 dismissing the claim of respondent No. 2 herein and allowing the counter claim of petitioners.

That, respondent No. 2 preferred an appeal before the Registrar under section 78 of the Act, 1960, which was allowed by the Registrar on 09.04.2003 which has been impugned in the petition."

At this stage, it would be appropriate to notice Section 66 of the Act, 1960, which provides as under:

"66. Settlement of dispute.

(1) The Registrar may, on receipt of the reference of dispute under section 64 decide the dispute himself, or transfer it for disposal to a nominee or board of nominees to be appointed by the Registrar.

(2) XXXX

(3) The decision of a nominee or a board of nominees to whom any dispute is transferred for decision under this section shall, for the purpose of this Act, be deemed to be the decision of the Registrar."

A meaningful reading of provisions contained in sub-section (1) of Section 66 of the Act would show that Registrar is competent authority to settle the dispute raised under Section 64 of the Act, 1960, and on receipt of reference, the Registrar may decide the dispute himself or transfer it for disposal to nominee or board of nominee to be appointed by the Registrar. Further reading of sub-section (3) of Section 66 of the Act, 1960 would show that decision of nominee/delegatee to whom dispute is referred for decision under sub-section (1) by the Registrar, shall be deemed to be the decision of the Registrar by virtue of deeming provision.

In the matter of State of Orissa and Others Vs. Commissioner of Land Records and Statement, Cuttack and Others, , it has been held by the Supreme Court that when the delegatee exercises its power on the basis of power conferred upon it by the delegator, its act would be deemed to be that of the principal, and held as under:

"We have to note that the Commissioner when he exercises power of the Board delegated to him under section 33 of the Settlement Act, 1958, the order passed by him is to be treated as an order of the Board of Revenue and not as that of the Commissioner in his capacity as Commissioner. This position is clear from two rulings of this Court to which we shall presently refer. The first of the said rulings is the one decided by the constitution Bench of this Court in Roop Chand Vs. State of Punjab, . In that case, it was held by the majority that where the State Government had, under section 41(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, delegated its appellate powers vested in it under section 21(4) to an ''officer'', an order passed by such an officer was an order passed by the State Government itself and "not an order passed by any officer under this Act" within section 42 and was not revisable by the State Government. It was pointed out that for the purpose of exercise of powers of revision by the State under section 42 of that Act, the order sought to be revised must be an order passed by an officer in his own right and not as a delegate of the State. The State Government was, therefore, not entitled under section 42 to call for the records of the case which was disposed of by an officer acting as its delegate." 15. Similarly, in the matter of OCL India Ltd. Vs. State of Orissa and Others, , the Supreme Court has held that Sales Tax Commissioner delegating his statutory power to revise STO assessment order to Assistant Commissioner, who exercised that power and dropped the proceeding, the Commissioner''s revisional power, stood exhausted by Assistant Commissioner, the Commissioner could not thereafter exercise that power by observing as under:

"It is no doubt true that the Commissioner is not denuded of the statutory power of revision after delegation, but that, in view of the said notification, only means that he can resume that power or cancel the delegation of revisional power to the Assistant Commissioner. That, by no stretch of imagination, can be construed to mean that once the orders have been examined under the revisional power by the Assistant Commissioner (the delegatee), the same orders can again be subjected to the revisional jurisdiction by the Commissioner." 16. The aforesaid principles of law laid down in State of Orrissa (Supra) has been re-iterated and followed by the Supreme Court in case of Chairman, Indore Vikas Pradhikaran Vs. Pure Industrial Cock and Chem. Ltd. and Others, .

Following the principles of laid down by the Supreme Court in aforesaid cases, if the facts of present case are examined, it is quite vivid that the Registrar in exercise of powers under Section 66(1) of the Act, 1960, instead of deciding the dispute himself, transferred the same for disposal in accordance with law by appointing the Assistant Registrar, Co-operative Society, and thereafter, the Deputy Registrar as delegatee of Registrar exercised the power of Registrar under Section 66(1) of the Act, 1960 and by virtue of provisions contained in Section 66(3) of the Act, 1960, order passed by the Deputy Registrar would be the order of Registrar under Section 66(1) of the Act, and once the order is passed by the Deputy Registrar exercising the power of Registrar under Section 66(1) of the Act, appeal under Section 78(1)(a) of the Act, 1960 would not lie before the Registrar. Under Section 78(1)(a) of the Act, appeal shall lie from every original order if such order is passed by the officers subordinate to Registrar and if such order is passed by the Additional Registrar or Joint Registrar to the Tribunal. Since in the instant case, the order has been passed by the Deputy Registrar as delegatee of Registrar under Section 66(1) of the Act, 1960, and therefore, such an order will be deemed to be order of Registrar by virtue of Section 66(3) of the Act, and as such, appeal as framed and filed before the Registrar against the order of Deputy Registrar was clearly unsustainable and not maintainable in law and order passed by the Registrar in that appeal is without jurisdiction and without authority of law.

As a fallout and consequence of aforesaid discussion, the writ petition is allowed and the order of Registrar dated 09.04.2003 setting aside the order of Deputy Registrar dated 09.03.2000 is hereby set aside and in consequence thereof, the order passed by the Deputy Registrar on 09.03.2000 is hereby restored. However, the respondent No. 2 would be at liberty to proceed in accordance with law to challenge the legality and validity of order dated 09.03.2000. No order as to cost(s).