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Rajasthan High Court · body

1977 DIGILAW 80 (RAJ)

Nehru Motor Transport Co-operative Society Ltd. v. Deputy Registrar, Co-operative Societies, Jodhpur

1977-03-01

SEN

body1977
A.P. SEN, J.—This writ petition by M/s. Nehru Motor Transport Co-operative Society Ltd., Jodhpur, is directed against an order of the Rajasthan State Co-operative Tribunal Rajasthan, Jaipur, dated 29-7-1976, rejecting an appeal preferred by it under sec. 123 of the Rajasthan Cooperative Societies Act, 1965 (hereinafter referred to as the Act) on the ground that it was not maintainable, and that dated 12-11-1976 dismissing an application for review preferred by it. 2. Respondent No, 4 Ramchandra, who is a member of the petitioner society, raised a dispute under sec. 75 of the Act claiming that a sum of Rs. 16,143.50 p. was due to him from the Society. In his statement of claim, the respondent No. 4 asserted that various sums were deposited by him with the Society in his own name and in the name of his relations. In its written statement, there is an admission by the Society of these allegations, though it pleaded that the claim having been preferred beyond the period of limitation prescribed therefore, the claim should not be entertained. The s>le arbitrator by his award dated 5-1-1976 decreed the claim. The Rajasthan State Co-operative Tribunal Jaipur, by its order dated 29-7 1976 dismissed the appeal filed by the petitioner holding that the award being by consent of the parties, the appeal was not maintainable. Thereupon, the petitioner preferred a review on the ground that Explanation to sec. 1.23 incorporates by reference sec. 97 of the Code of Civil Procedure and not sec. 96 and, therefore, sec. 96(3) of the Code was not applicable, so as to preclude the appeal. The Tribunal by its order dated 12-11-1976, however, rejected the contention. 3. The order of the Tribunal was assailed on several grounds, namely, (i) the Court is not entitled to read words into a section and, therefore, the Tribunal was in error in reading sec 96 in sec. 123, (ii) the jurisdiction of the Arbitrator under sec. 75(1)(b) is confined to settling disputes between a member and Society. Admittedly, some of the amounts claimed belonged to other who were not members of the Society and, therefore, the award was nullity, (iii) the Arbitrator having failed to render the award within the period of three months as fixed in the letter of appointment Ex. 75(1)(b) is confined to settling disputes between a member and Society. Admittedly, some of the amounts claimed belonged to other who were not members of the Society and, therefore, the award was nullity, (iii) the Arbitrator having failed to render the award within the period of three months as fixed in the letter of appointment Ex. 13, the award was illegal and void and, therefore, cannot be acted upon There is, in my view no substance in any of these contentions. 4. None of these points were ever raised at any stage of the proceedings before the Tribunal or the Arbitrator. 5. It is well settled that a question not raised before the Tribunal cannot be taken for the first time in proceedings under Article 226 of the Constitution. It the matter of issue of a writ of Certiorari, the High Court exercises a special jurisdiction and not ordinary jurisdiction and that a question of jurisdiction can not be allowed to be raised on a petition when no objection to the jurisdiction had been taken before the Tribunal whose order or proceedings are being challenged. 6. In the case of the King vs. Williams Exparte Philips (1), where a man applied for a writ of certiorari to quash an order made by Justices on the ground that one of the Justices was an interested party, it was held that the applicant was not entitled to the writ ex debito justitiae because knowing the disqualification he bad chosen to stand by during the hearing before the Justice without taking any objection. Channell J , pointed out— "No objection was taken to the jurisdiction of the Court below at the hearing before that Court; that being so, it is the rule of this Court not to grant a writ of certiorari except upon an affidavit which negatives knowledge on the part of the applicant when he was before the Court below of the facts on which he bases his objection. That rule is established on good grounds. It applies equally whether the objection is on grounds which make the act of the justices voidable or void." He then observed at page 614: — "A party may by his conduct preclude himself from claiming the writ ex debito justitiae, no matter whether the proceedings which he seeks to quash are void or voidable. It applies equally whether the objection is on grounds which make the act of the justices voidable or void." He then observed at page 614: — "A party may by his conduct preclude himself from claiming the writ ex debito justitiae, no matter whether the proceedings which he seeks to quash are void or voidable. If they are void, it is true that no conduct of bis will validate them; but such consideration do not affect the principles on which the Court acts in granting or refusing the writ of certiorari. This special remedy will not be granted ex debito justitiae to a person who fails to State in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relies to impugn them. By failing so to do a party grieved precludes himself from the right to have the writ ex debito justitiae and reduces his position to that of one of the public having no particular interest in the matter. To such a one the granting of the writ is discretionary." 7. This case and other English cases in the same line have been followed by many High Courts in India: Gandhinagar Motor Transport Society vs. State of Bombay (2), Ambaram Kaluram Kulmi vs. Gumansingh Ramji (3), Prem Lata Agarwal vs. Lakshman Prasad Gupta (4) and Bachan Singh vs. Gauri Shankar Agarwal (5). The decision in Raghunandanlal vs. State of Rajasthan (6), Dholpur Co-operative Transport and Multipurposes Union Ltd. vs. Appellate Authority (7), Barkatali vs. Custodain General of Evacuee Property of India (8), and Badridass Kanhaivalal vs. Appellate Tribunal of State Transport Authority, Rajasthan (9) are distinguishable. 8. Even on merits, the petitioner has no case. It is ture that the Court cannot read a word into a section unless it is absolutely necessary to do so. It is said that the Court cannot add or mend and, by construction make up difficien-cies which are left there. It is, therefore, urged that it would be contrary to all rules of construction to read sec. 96 in place of sec. 97, in sec 123 of the Act. In support of the contention, reliance is placed on the decision of the Supreme Court in Nalinakhya Bysack vs. Shyam Sunder Haldar (10). 9. It is, therefore, urged that it would be contrary to all rules of construction to read sec. 96 in place of sec. 97, in sec 123 of the Act. In support of the contention, reliance is placed on the decision of the Supreme Court in Nalinakhya Bysack vs. Shyam Sunder Haldar (10). 9. There can be no dispute with the proposition that the intention of the legislature has primarily to be gathered from the language used. A construction which requires for its support, addition or substitution of words or it relates in rejection of words as meaningless, has to be avoided. Thus in Nalinakhya Bysack vs. Shyam Sunder Haldar (supra) their Lordships held that phraseology used in a section, cannot be altered. It is not competent to any Court to proceed upon the assumption that the Legislature has made a mistake. The Court cannot, therefore, and Legislatures defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is a casus omissus, it is for others than the Courts to remedy the defect. 10. But that does not imply that the Court can overlook what is nothing but a printing error. It is well settled that where the literal meaning of the words used in a section would manifestly defect its object by making it meaningless and ineffective, it is legitimate and even necessary to adopt the rule of literal construction so as to give it a meaning and make it effective and operative. See : Food Controller vs. Cork (11), Ramkissendas Dhanuka vs. Satyacharan Law (12), Cf. Raj Krushna Bose vs. Vinod Kanungo (13), Ramaswamy Nadar vs. The State of Madras (14), Siraj-ul-Haq vs. Sunni Central Board of Waqf. U.P. (15), & Champa Kumari Singhvi vs. The Member Board of Revenue, West Bengal (16). 11. Explanation to sec. 123 of the Act reads: "Explanation.—The Tribunal hearing section 97 and Order XLI in the First an appeal under this Act shall exercise all the Schedule to the Code of Civil Procedure, powers conferred upon an appellate court by 1908." The words sec. 97 in sec. 123 must, therefore, be taken to mean sec. 96, otherwise the provision would become nugatory. The Tribunal was, therefore, right in adopting that construction which was more consonance with a reason or justice. 97 in sec. 123 must, therefore, be taken to mean sec. 96, otherwise the provision would become nugatory. The Tribunal was, therefore, right in adopting that construction which was more consonance with a reason or justice. At times the intention of the legislature is clear but the unskilfulness of draftsman in introducing certain words in the statute results in apparent ineffectiveness of the language. Since courts strongly lean against reducing a statute to a futility, it is permissible in such cases to reject the surplus words to make the statute effective and workable: Salmon vs. Duncombe (17). Craies on Statute Law, 6th Ed, p. 30, observes,— "Ignorance is more often displayed in private members Bills than in those originating in government departments. It is however, a very serious matter to held, that where the main object of a statute is clear, it shall be reduced to a nullity by the draftsmans unskilfulness or ignorance of law. It may be necessary for a court of justice to come to that conclusion, but there Lordships hold that nothing can justify it except necessity, or the absolute intractability of the language used." Again, at pp. 106 7, "It is a canon of construction that, if it be possible, effect must be given to every word of an Act of Parliament or other document, but that if there be a word or a phrase therein to which no sensible meaning can be given, it must be eliminated." xxxx xxxx xxxx xxxx xxxx "The question at times arises whether, admitting a statute to have a certain intention, it must, through defective drafting or faulty expression, fail of its intended effect or whether necessary alterations may be made by the court. The rule on this subject laid down in the Privy Council in Salmon vs. Duncombe." The first contention, therefore, fails. 12. Respondent No. 4 Ramchandra in his claim asserts that the moneys standing to credit of several of his relations in the books of the Society, belong to him. In its written statement, the Society has admitted these allegations. There is on record a notice of demand served by respondent No. 4, claiming that the moneys which belong to him, were due and payable to him. In its written statement, the Society has admitted these allegations. There is on record a notice of demand served by respondent No. 4, claiming that the moneys which belong to him, were due and payable to him. In response to the notice, the Administrator appointed for the Society, executed a receipt in favour of the respondent No. 4 acknowledging its liability to pay the amounts to him. That is not all. There is also on record, an audit report showing that the amounts borrowed by the Society from the respondent No. 4, were still outstanding. It would thus be clear that these amounts, though standing in the name of others, i.e., the relations of the respondent No. 4, were, in fact, borrowed from him. This is, therefore, not a case where there was a dispute between the Society and non-members, but it was a dispute between the Society and a member. The matter, therefore, clearly fell within the purview of sec. 75 of the Act. The Arbitrator, therefore, had jurisdiction to make the award. The second contention must, therefore, also fail. 13. It is true that the Deputy Registrar, while appointing the arbitrator, had directed him to make an award within a period of three months. After the expiry of the stipulated period, the petitioner without any objection continued to participate in the proceedings before the arbitrator. Thus, it must be presumed that the petitioner by his conduct acquesed in the proceedings before the Arbitrator. It must be presumed to have consented to an extension of time. The validity of the award cannot, therefore, be challenged. 14. The writ petition, therefore, fails and is dismissed. There shall be no order as to costs.