AI Structured Summary
Not yet generated for this judgment
Judgment
Tarlok Singh Chauhan, J
The moot question in this appeal is  whether a revision petition under Section 94 of the Himachal Pradesh CoÂoperative Societies Act, 1968 (for
short ‘Act’) is maintainable even in case where an appeal has been preferred by the aggrieved party under Section 93 of the Act?
The writ petition filed by the appellants came to be dismissed by the learned writ Court on the ground of availability of an alternative remedy under
Section 94 of the Act, constraining them to file the instant appeal.
In order to appreciate the controversy, it would be relevant to reproduce Sections 93 and 94 of the Act, which read as under:
“93. Appeal :â€" An appeal shall lie under this section againstâ€
(a) an order of the Registrar made under sub section (4) of section 8 refusing to register a society;
(b) an order of the Registrar made under sub section (4) of section 11 refusing to register an amendment of the byeÂlaws of a society;
(c) a decision of a society refusing to admit any person as a member of the society who is otherwise duly qualified for membership under the byeÂ‐
laws of the society;
(d) a decision of a society expelling any of its members;
(e) an order of the Registrar removing the committee of a CoÂoperative society under section 37;
(f) an order of the Registrar under section 68 apportioning the cost of the enquiry held under section 67 or an inspection made under section 66;
(g) any order of surcharge under section 69;
(h) any decision or award made under section 73;
(i) an order made by the Registrar under section 78 directing the winding up of CoÂoperative society;
(j) any order made by the liquidator of a society in exercise of the powers conferred on him by section 80;
(k) any order made under section 74;
(l) an order of the Registrar made under sub section (2) of section 11ÂA; or
(m) an order of the Registrar made under sub section (1) of section 14ÂA.
(2) An appeal against any decision or order under subÂsection (1) shall be made within sixty days from the date of decision or order,â€
(a) If the decision or order was made by the Assistant Registrar or the Deputy Registrar, to the Registrar or such Additional Registrar or Joint
Registrar as may be authorized by him in this behalf; or
(b) if the decision or order was made by the Joint Registrar, the Additional Registrar or the Registrar, to the Government ; or
(c) if the decision or order was made by any other person, to the Registrar or such Additional Registrar, Joint Registrar, Deputy Registrar or Assistant
Registrar as may be authorized by him in this behalf: and
(3) No appeal shall lie under this section from any decision or order made by any authority in appeal.
Review and Revision :â€" (1) The State Government except in a case in which an appeal is preferred under section 93 may call for and examine
the record of any inquiry or inspection held or made under this Act or any proceedings of the Registrar or of any person subordinate to him or acting
on his authority, and may pass thereon such orders as it thinks fit.
(2) The Registrar may at any time,â€
(a) review any order passed by himself; or
(b) call for and examine the record of any inquiry or inspection held or made under this Act of the proceedings of any person subordinate to him or
acting on his authority and if it appears to him that any decision, order or award or any proceedings so called or should for any reason be modified,
annulled or reversed, may pass such order thereon as he thinks fit;
Provided that, before any order is made under subÂsection (1) and (2), the State Government or the Registrar as the case may be shall afford to any
person likely to be affected adversely by such orders an opportunity of being heard.
Provided further that every application under subÂsection (1) and (2), to the State Government or the Registrar, as the case may be shall be made
within ninety days from the date of the communication of the order sought to be reviewed or revised.â€
The learned writ Court held that a revision would still be maintainable even when an appeal under Section 93 of the Act is preferred by the
aggrieved party as would be evident from para 4 of the order, which reads as under:
“In my considered view, the contention of learned Senior Counsel for the petitioners cannot be accepted. Section 94(1) of the 1968 Act is to the
effect that the State Government, except in a case in which Act is to the effect that the State Government, except in a case in which an appeal is
preferred under Section 93, may call for and examine the record of any inquiry or inspection held or made under this Act or any proceedings of the
Registrar or of any person subordinate to him or action on his authority and may pass thereon such orders as it thinks fit. Thus, what Section 94
envisages is that in a case where an appeal is preferred under Section 93 of the 1968 Act, State Government cannot simultaneously exercise its power
of revision so conferred under Section 94 of the 1968 Act. However, the language of Section 94 cannot be construed that an order which stands
passed by the Appellate Authority in an appeal preferred under Section 93 of the 1968 Act is also not revisable. Had that been the intent of the
Legislature, then the language of Section 93 would have been explicit that the State Government cannot exercise the power of revision in a case in
which an order stands passed in an appeal preferred under Section 93 of the 1968 Act. Further, in my considered view, once an appeal is preferred
under Section 93 of the 1968 Act and the same culminates into an order passed by the Registrar, then the State Government has the power of
revision, because then the adjudication of the appeal becomes ‘any proceedings of the Registrar’ and these proceedings are revisable as per
statutory provisions of Section 94(1) of the 1968 Act.â€
In our considered view the judgment rendered by the learned writ Court is in the teeth of the two judgments rendered by the learned Division Bench
of this Court in The Tiara CoÂoperative Agriculture Service Society Ltd. vs. State of Himachal Pradesh and others, 2016 (6) ILR (HP) 64 a4nd
Nikku Ram vs. State of H.P. and others 2016 (3) ILR (HP) 2118.
In Tiara CoÂoperative Agriculture Service Society’s case (supra) one of us (Justice Tarlok Singh Chauhan, J.) authored the judgment, the
petitioner therein had filed a writ petition seeking quashing of the inspection note and office order whereby the Assistant Registrar, Co operative
Societies, Dharamshala had on the basis of the inspection note, ordered an inquiry (surcharge proceedings) against the petitioner under Section 69 (1)
of the Act by appointing the Block Inspector as an Inquiry Officer. The question then arose as to whether the writ petition would be maintainable
especially when the petitioner had an alternative and efficacious remedy available under the Act.
Learned counsel for the petitioner therein contended that no statutory remedy was available to him under the Act and, therefore, he had filed the
instant petition.
Holding the petition to be not maintainable, it was observed as under:
“5. We have gone through the provisions of the Act and Rules and are of the considered view that the petitioner has not only an alternative but
efficacious statutory remedy available to it under the Act.
ChapterÂVIII of the Act specifically deals with the audit, inquiry, inspection and surcharge. Section 65 therein deals with inspection of coÂ‐
operative societies. Section 67 deals with inquiry by the Registrar. Whereas, Section 69 relates to surcharge proceedings, which are to be initiated in
case during the course of an audit, inquiry, inspection or the winding up of a coÂoperative society, it is found that any person who is or was entrusted
with the organization or management of such society, or who is or has at any time been an officer or an employee of the society, has made any
payment contrary to the provisions of the Act, the rules or the byeÂlaw or has caused any deficiency in the assets of the society by breach of trust or
wilful negligence or has misappropriated or fraudulently retained any money or other property belonging to the society, the Registrar may, of his own
motion or on the application of the committee, liquidator or any creditor, inquire himself or direct any person authorized by him, by an order in writing in
this behalf, to inquire into the conduct of such person.
ChapterÂXII relates to the jurisdiction, appeal and review and the relevant provisions for the adjudication of this petition is contained in Section 94,
which reads thus:
“4. Review and Revision:â€" (1) The State Government except in a case in which an appeal is preferred under section 93 may call for an examine
the record of any inquiry or inspection held or made under this Act or any proceedings of the Registrar or of any person subordinate to him or acting
on his authority, and may pass thereon such orders as it thinks fit.
(2) The Registrar may at any time,â€
(a) review any order passed by himself; or
(b) call for and examine the record of any inquiry or inspection held or made under this Act or the proceedings of any person subordinate to him or
acting on his authority and if it appears to him that any decision, order or award or any proceedings so called or should for any reason be modified,
annulled or reversed, may pass such order thereon as he thinks fit;
Provided that, before any order is made under sub section (1) and (2), the State Government or the Registrar as the case may be shall afford to any
person likely to be affected adversely by such orders an opportunity or being heard.
“Provided further that every application under sub section (1) and (2), to the State Government or the Registrar, as the case may be shall be
made within ninety days from the date of the communication of the order sought to be reviewed or revised.â€
A bare perusal of the aforesaid provisions clearly shows that this Section gives revisional powers to the State Government in a case where no
appeal under section 93 of the Act has been preferred and similar powers have been conferred upon the Registrar to be exercised either suo motu or
on an application of a party, provided the same is preferred within 90 days from the date of communication of the order sought to be reviewed or
revised and further that the person(s) likely to be effected adversely by such order is afforded an opportunity of being heard. It is immaterial whether
the revisional power is exercised, on action initiated at the instance of the interested party or suo motu, the order passed would be within jurisdiction.
This Section specifically deals with the power of the State Government/Registrar to call for and to examine the record of any inquiry or inspection
held or made under this Act or any proceedings. The State Government can examine any proceedings of the Registrar or any person subordinate to
him or acting on his authority, whereas the Registrar is empowered to call for and examine the proceedings of any person subordinate to him or acting
on his authority and if it appears to him that any decision, order or award or any proceedings so called or should for any reason be modified, annulled
or reversed, may pass such order thereon as he thinks fit.
However, it needs to be clarified that if revisional application is not maintainable, fortiori suo motu powers cannot also be exercised.
In view of what has been observed above, we can safely come to the following conclusions:
i) The State Government or the Registrar under Section 94 of the Act can exercise its suo motu revisonal jurisdiction or on an application made by an
aggrieved party;
ii) the remedy of revision before the State Government is barred only in the cases where an appeal has already been preferred under section 93 of the
Act;
iii) the remedy of revision either suo motu or otherwise can be exercised only against the decision or order passed by the authority under the Act or
proceedings arising out of the Act or the Rules framed thereunder. However, this remedy cannot be invoked against an order passed by the society;
iv) the suo motu power of revision cannot be exercised by the State Government or the Registrar, as the case may be, if at the instance of an
aggrieved party, the revision is not maintainable, fortiori suo motu power cannot also be exercised.
In Nikku Ram’s case (supra), the State had dismissed the appeal filed by the petitioner as not being maintainable as the petitioner therein had
already available a remedy of filing of the appeal before the Registrar. Upholding the said decision, it was observed as under:
“20…..As far as passing of order dated 20.4.2010 by respondent No.1, whereby appeal preferred by the petitioner under Section 93(2) was
dismissed on the ground of maintainability is concerned, this Court is of the view that Section 94 of the Act bars the second appeal before the State
Government. In this regard Section 94 is reproduced hereinbelow:
“ (1) The State Government except in a case in which an appeal is preferred under section 93 may call for and examine the record of any inquiry
or inspection held or made under this Act or any proceedings of the Registrar or of any person subordinate to him or acting on his authority, and may
pass thereon such orders as it thinks fit.
(2) The Registrar may at any time,â€
(a) review any order passed by himself; or
(b) call for and examine the record of any inquiry or inspection held or made under this Act of the proceedings of any person subordinate to him or
acting on his authority and if it appears to him that any decision, order or award or any proceedings so called or should for any reason be modified,
annulled or reversed, may pass such order thereon as he thinks fit;
Bare perusal of the provisions, referred hereinabove, clearly suggest that State Government has no power to entertain an appeal especially where
appeal under Section 93 has already been filed by the party concerned. Section 94, as referred hereinabove, only provides for the power of revision to
the State Government that too only in those matters which are not covered by Section 93 of the 1968 Act. Hence order passed by respondent No.1
dated 20.4.2010 appears to be legally correct and cannot be interfered with.â€
Mr. B.C. Negi, learned senior Counsel for respondents No.4 and 5 would argue that the aforesaid judgments rendered by the learned Division
Bench of this Court as relied upon by learned counsel for the appellants are per incuriam as the earlier judgment rendered by this Court in CWP No.
9391 of 2012, titled Daulat Ram vs. State of H.P. and others, decided on 20.11.2013, has not been noticed wherein the Court has clearly held that the
revision even where the appeal has been preferred under Section 93 of the Act against appellate order to be maintainable, more particularly, the
observations as contained in paraÂ2 of the judgment, which reads as under:
“We are of the considered view that the authority below erred in correctly and completely construing and interpreting the provisions of the Statute.
Power vested with the State Government, under Section 94 of the Act, is distinct and separate from the revisional powers vested with the Additional
Registrar, Cooperative Societies. We find that amplitude of Section 94 is wide enough and would take in its sweep, powers of calling or entertaining
petitions other than the one in which appeal is preferred under Section 93 of the Act. In exercise of its revisional jurisdiction, the authority can call for
and examine any record of inquiry or inspection under the Act or the proceedings of any person subordinate to him, acting on his authority. The
revisional authority can also call for proceedings of the “Registrar or any person subordinate to himâ€. Such revisional power is to be exercised if
the order is perverse, erroneous or illegal and can modify, annul or reverse any order passed by the Registrar. Revision petition against an order
passed by the Assistant Registrar Cooperative Societies, would lie under Section 94 of the Act.â€
We have meticulously analyzed the observations made in above decisions and do not find any conflict. In fact, even in Daulat Ram’s case
(supra), this Court has categorically held that amplitude of Section 94 is wide enough and would take in its sweep, powers of calling or entertaining
petitions other than the one in which appeal has been preferred under Section 93 of the Act.
Confronted with this, learned counsel for the appellants would then rely upon the Single Bench Judgment of this Court in CWP No. 4294 of 2013,
titled Solan District Truck Operators Transport Cooperative Society Ltd. vs. Harjinder Singh and others, decided on 21.11.2014, wherein after placing
reliance on Daulat Ram’s case, it was observed as under:
“6. In view of the aforesaid authoritative pronouncement of this Court in Daulat Ram’s case (supra) regarding scope of Section 94 of the Act,
which is otherwise binding upon this Court, the impugned order dated 14.02.2013 cannot be sustained. The learned Division Bench has already held
that amplitude of Section 94 is wide enough and would take in its sweep, powers of calling or entertaining petitions other than the one in which appeal
is preferred under Section 93 of the Act. The revisional Court in exercise of its jurisdiction can call for and examine any record of inquiry or inspection
under the Act or the proceedings of any person subordinate to him, acting on his authority. The revisional authority can also call for the proceedings of
not only the Registrar but any other person or authority subordinate to him.â€
We have gone through the judgment and find that the same is not based on correct appreciation of the ratio of Daulat Ram’s case and for that
matter even the provisions of Section 94 of the Act have been misinterpreted and misconstrued. Moreover, the judgment in Harjinder Singh’s case
(supra) cannot withstand judicial scrutiny after the subsequent judgments of the learned Division Bench of this Court in Nikku Ram’s case (supra)
and The Tiara Cooperative Agriculture Service Society’s case (supra) and is thus overÂruled.
Learned counsel for the appellants after placing reliance on the judgment rendered by this Court in Asa Singh and others vs. State of Himachal
Pradesh and another, AIR 1981 HP 75, would argue that in case appeal succeeds then the writ petition should be heard by the learned Division Bench
itself as there is grave urgency involved in the same.
We have considered the submission and even though we are inclined to allow the appeal but we would refrain from going into the merits of the
case or else that in the given facts and circumstances of the case would amount to usurping the jurisdiction of the writ Court. However, taking into
consideration the urgency of the matter, we would definitely request the learned writ Court to hear the matter on priority basis.
In view of the aforesaid discussion, the appeal is allowed and the order passed by the learned writ Court is setÂaside. The parties are directed to
appear before the learned writ Court on 29.12.2020.
The appeal is disposed of in the aforesaid terms, so also the pending application(s), if any.