Yegandla Laxmaiah vs Deputy Registrar, Co-op. Societies and Another

Lingaraja Rath, J.—The question raised in this case is whether the forum before which an appeal against a surcharge order passed under the A.P. Co-operative Societies Act, 1964 lay continues to be the forum for filing of appeals against orders passed before the amendment of the Act by Act 15 of 1991, wherein Sections 75 and 76 underwent amendments providing for constitution of a different forum of appeal, the Co-operative Tribunal to be set up by the Government.

The simple facts are that the petitioner who had been the President of M.P.C.S. Kapugal was made liable in a surcharge proceeding under the Act for an amount of Rs. 5,477-92 ps. against which he preferred an appeal before the Additional District Munsif, Kodad as the Co-operative Tribunal, but a docket orderwas passed by the learned Munsif that after the Amendment Act 1991, the appeal is to be preferred before the Co-operative Tribunal constituted by the Government. The petitioner again resubmitted the appeal before the learned Munsif, placing reliance upon a decision of this Court reported in P.G. Tilak Vs. The Deputy Registrar of Co-operative Societies and Others, . The learned District Munsif passed orders on 2-2-1995 returning the C.M.A. papers to be presented before the proper Court. The present writ petition has been filed challenging the orders of the Munsif contending that appeal being a vested right and the cause of action i.e., surcharge order having been passed on 26-9-1986, namely prior to the Amendment Act, the appellate forum is to be determined in accordance with the law as existed on the date of the surcharge order for which the appeal should lie before the Munsif only.

Once orders had been passed by the Additional Munsif returning the C.M.A. papers to be filed before the proper forum, it could not have been resubmitted before him again without obtaining reversing orders from higher forum. But that apart, the substantive question raised before us is as to whether, since the orders of surcharge were passed prior to the passing of the Amendment Act, the appellate forum in respect of the order would be as provided for in the original Act or would be the forum as prescribed in the Amendment Act.

It is well settled that the right of appeal is a vested one and that the existence of such right is determined in accordance with the law as is obtained on the date the original cause of action itself arises. The matter was set at rest by decision of the Supreme Court in Garikapatti Veeraya Vs. N. Subbiah Choudhury, relying upon the Privy Council decision in The Colonial Sugar Refining Co. Ltd. v. Irving 1905 AC 369 . But while the right of appeal is a vested right, the forum where such appeal would lie is a procedural one, as was explained by the Supreme Court in Maria Cristina De Souza Sodder and Others Vs. Amria Zurana Pereira Pinto and Others, wherein observation was made in para 4:

"....... but the forum where such appeal can be lodged is indubitably a procedural matter and, therefore, the appeal, the right to which has arisen under a repealed Act, will have to be lodged in a forum provided for by the repealing Act. That the forum of appeal and also the limitation for it, are matters pertaining to procedural law will be clear from the following passage appearing at Page 462 of Salmond''s Jurisprudence (12th Edn.):

"Whether I have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice; but in what Courts and within what time I must institute proceedings are questions of procedural law, for they relate merely to the modes in which the Courts fulfil their functions."

The position, as summed up by the Apex Court, clearly applies to the present case. It is not the submission of the learned Counsel that the right of appeal has been taken away but that the forum has only been changed. The appellate forum now is the Co-operative Tribunal constituted under the Amendment Act. The matter is also cleared from Section 76, as amended by the Amendment Act, providing in the proviso to Section 76(1A) that all appeals pending before the Co-operative Tribunal before the commencement of the Amendment Act stand transferred to the Co-operative Tribunal constituted u/s 75, as amended by the Amendment Act. Hence, while all pending appeals stood transferred to the newly constituted Tribunal, there could not be any question of fresh appeals being entitled to be filed before the Forum as was previously existing prior to the Amendment Act. Because of such position of law, we are not able to agree with great respect to the learned single Judge to the view expressed in P.G. Tilak v. Deputy Registrar of Co-op. Societies (1 supra).

Consequently, this petition has no merit and is dismissed. But, in the circumstances there is no order as to costs.