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1968 DIGILAW 29 (ALL)

Hafiz Mohammad Ishaq Rasool Bux v. K. N. Mathur

1968-01-12

SATISH CHANDRA

body1968
ORDER Satish Chandra, J. - The principal question raised in this petition under Article 226 of the Constitution is whether the Registrar, Co-operative Societies, while seized of an appeal against the award of an arbitrator, has the authority to pass an interim order in the nature of stay or injunction during the pendency of the appeal before him. 2. It appears that the Board of Directors of the Etawah District Weavers Central Cooperative Store Ltd., a society registered under the U. P. Co-operative Societies Act, was dissolved on 6th October, 1965. Fresh elections to the Board of Directors were held on 23rd October, 1965, wherein the respondents second set were elected as Directors. On 9th November, 1965, at a meeting of the Board of Directors, certain other persons were co-opted as Directors and a Managing Director was elected. Sheo Dayal, respondent No. 16, filed an application u/r. 115 of the Co-operative Societies Rules, challenging the validity of the order of the dissolution of the previous Board of Directors and also the fresh elections held on 23rd October, 1965, and the co-option of the Directors and the election of the Managing Director on 9th November, 1965. In due course, the Registrar referred the petition to the arbitration of one S. K. Rai as the sole arbitrator. The arbitrator gave his award on 30th September, 1967. He held that the dissolution of the Board of Directors on 6th October, 1965, was illegal and consequently fresh election and co-option of the Directors and election of the Managing Director were all invalid. He further held that the pre-existing Board of Directors was entitled to function till elections were held afresh in accordance with law. 3. The respondents second set thereupon instituted an appeal against the award of the arbitrator before the Registrar under R. 133 of the Co-operative Societies Rules, 1936. Along with the appeal, an application praying for the suspension of the operation of the award of the arbitrator was also filed. On 21st November, 1967, the Deputy Registrar passed the impugned order directing that the award given by the sole arbitrator shall not be enforced till the appeal was finally decided. The learned Counsel have informed me that the appeal is still pending. 4. On 21st November, 1967, the Deputy Registrar passed the impugned order directing that the award given by the sole arbitrator shall not be enforced till the appeal was finally decided. The learned Counsel have informed me that the appeal is still pending. 4. For the petitioner, it was urged that the Registrar, while seized of an appeal, under the Co-operative Societies Rules, had no jurisdiction to pass an interim order in the nature of stay or injunction suspending the operation of the award. In Anand Prakash v. Asst. Registrar, Co-operative Societies, 1967 All LJ 454 : (AIR 1968 Allahabad 22), I held that an arbitrator had no inherent, implied, incidental or consequential powers, in the exercise of which he could pass an order of stay or in the nature of injunction during the pendency of the arbitration proceedings. It was urged that the same principle would apply to an appellate authority acting under the Co-operative Societies Rules. 5. For the respondents, reliance has been placed upon Rule 133 of the Rules. Under it, on an appeal, the Registrar is authorised to pass such orders as he deems fit. It was submitted that this Rule, couched as it is in wide and unfettered language, confers powers on the Registrar to pass any kind of order as he thinks fit in the appeal. The power would include jurisdiction to pass interim orders staying or suspending operation of the award which has been challenged in the appeal. 6. In my opinion, the phrase "shall pass such orders as he deems fit" will entitle the Registrar to pass any kind of orders disposing of the appeal. It is well settled that in the absence of any express provision, the appellate jurisdiction is co-extensive in its nature and extent with the jurisdiction possessed by the original authority (See Nirmal Das Khatooria v. State Transport Authority (Tribunal), Lucknow, 1961 All LJ 281 at p. 284 : (AIR 1961 Allahabad 511 at p. 513). If the arbitrator, who was the authority of the first instance, had no inherent, implied, incidental powers, the appellate authority would also not have such powers. Rule 133 does not confer any power on the Registrar other than one to decide the appeal. In deciding the appeal, he can pass such orders as he deems fit. If the arbitrator, who was the authority of the first instance, had no inherent, implied, incidental powers, the appellate authority would also not have such powers. Rule 133 does not confer any power on the Registrar other than one to decide the appeal. In deciding the appeal, he can pass such orders as he deems fit. Otherwise, the appellate jurisdiction would be of the same nature and extent as possessed by the original authority. 7. It is to be seen that under Rule 137, the decision of the Registrar is also enforceable in the same manner as the award of an arbitrator. The two methods for executing the award or the decision of the Registrar prescribed by Rule 137, require the parties to apply to entirely distinct authorities. If some money has been awarded, or given by the decision of the Registrar, a requisition has to be made to the Collector of the District to recover the same as an arrear of land revenue. Otherwise, the award or decision of the Registrar is enforced as if it were a decree of the Court, on an application made to the relevant civil Court. Like the arbitrator, the Registrar while seized of an appeal has no power to execute or enforce his ultimate decision. This indicates that these authorities cannot have any inherent or implied power to see that the decisions given by them would remain enforceable or executable. The principles upon which such a power was denied to the arbitrator in the case of Anand Prakash, 1967 All LJ 454 : (AIR 1968 Allahabad 22), cited above, would equally apply to the appellate authority. 8. For the respondents, reliance was placed upon a decision of a Division Bench of this Court in Smt. Bhagwati Devi v. Lala Baijnath, 1966 All WR 631. In that case, Section 7-F of the Rent Control Act was interpreted to mean that the State Government had power to pass an order staying the operation of an order of the Commissioner. Under that provision, the State Government is conferred power to make such orders as appears to it necessary in the ends of justice. The language used in S. 7-F of the Rent Control Act is completely different from the language of Rule 133 of the Cooperative Societies Rules. Here the Registrar can pass such orders as he deems fit in the appeal. The language used in S. 7-F of the Rent Control Act is completely different from the language of Rule 133 of the Cooperative Societies Rules. Here the Registrar can pass such orders as he deems fit in the appeal. The decision in Bhagwati Devis case, 1966 All WR (HC) 631, was given with reference to the Rent Control Act. There was no argument or discussion of the principles upon which incidental or implied or inherent powers are exercisable. I am hence not inclined to extend the dictum of that case to the present case. 9. Reliance is also placed on Themmalapuram Bus Transport Ltd. v. Regional Transport Officer, A.I.R. 1957 Ker 142, where a Single Judge held that the power to stay was a necessary corollary to the power to entertain an appeal or revision. In that case, there is no discussion of the principles involved. The decision is, therefore, not of much help. The principles discussed and held applicable in Anand Prakashs case, 1967 All LJ 454 -( AIR 1968 All 22 ), would run counter to the observations made by the Kerala High Court. I am, therefore, not inclined to accept that decision as helpful. 10. In my opinion, the Registrar acting as an appellate authority, had no power to pass an interim order of stay or injunction. Such a power cannot be spelled out from Rule 133, which authorises him to pass such orders in the appeal as he deems fit. It would confer upon him powers to pass orders as he thought fit in disposing of the appeal. For example, he might allow the appeal and set aside the award of the arbitrator, dismiss the appeal and uphold the award, or modify the award, and send the matter back to the arbitrator. All such orders would be well within the powers of the Registrar because they go to decide or dispose of the appeal. Apart from such orders, he would have no jurisdiction to pass any interim orders suspending operation of the award during the pendency of the appeal, as they do not go to decide any part of the appeal. 11. The petition, therefore, succeeds and is allowed. The impugned order dated 21st November, 1967, passed by the Deputy Registrar, is quashed. The petitioner will be entitled to his costs. The Deputy Registrar will proceed to dispose of the appeal expeditiously.