District Co-operative Federation Ltd. v. Registrar, Co-operative Societies, U. P
1978-11-22
HARI SWARUP, U.C.SRIVASTAVA
body1978
DigiLaw.ai
JUDGMENT U.C. Srivastava, J. - This petition under Art. 226 of the Constitution of India is directed against the award dated 24-4-1972 passed by the Arbitrator and order dated 22nd Dec., 1973 passed by the Registrar Cooperative Societies exercising appellate powers partly allowing the appeal filed by the petitioner reducing the amount which was awarded by the opposite party No. 3, Arbitrator, against the opposite party No. 2. The proceedings started at the instance of opposite party No. 2 who filed a money claim for Rs. 3,38,588.96 p. in respect of the Fertiliser Mixture and coal dues before the Registrar Co-operative Societies who referred the matter in dispute to arbitration to opposite party No. 3, Retired Additional Registrar, Co-operative Societies. 2. The case remained pending before the Arbitrator for more than 2 years. Some twenty hearings took place before the Arbitrator who in his award elaborately detailed the proceedings which took place before him on various dates. From the perusal of the same it appears that after certain proceedings an application was moved by the petitioner for summoning certain records on. which the petitioner was asked to file copies, of the same. Thereafter opposite parties filed* certain documents and the petitioner who had earlier filed a written statement filed another written statement and made a counter claim; and subsequently filed objections and documents in respect of which he had earlier-moved an application for summoning of the records. On a subsequent date an application for amendment was moved by the opposite party No. 1 which was opposed by the petitioner and after hearing the parties the same was allowed on payment of Rs. 150/-as costs which was accepted on behalf of the petitioner. Thereafter the petitioner sought for certain clarifications regarding the items which were also mentioned in the application for amendment. The Arbitrator allowed the claim of opposite party No. 1 to the extent of Rs. 3,86,789.50 p. against which an appeal was filed by the petitioner which was partly allowed and certain deductions were given to the petitioner and the amount so awarded was reduced to Rs. 1,86,950.00. 3. Sri Bishun Singh, learned counsel for the petitioner, has challenged the order passed by the Arbitrator and the appellate order, even though the appeal was partly allowed, on four grounds : 1. That the Arbitrator wrongly rejected the application filed by the petitioner for-summoning the record. 2.
1,86,950.00. 3. Sri Bishun Singh, learned counsel for the petitioner, has challenged the order passed by the Arbitrator and the appellate order, even though the appeal was partly allowed, on four grounds : 1. That the Arbitrator wrongly rejected the application filed by the petitioner for-summoning the record. 2. That the amendment application filed by opposite party No. 1 at a late stage was:-wrongly allowed. 3. That the Registrar after granting one-extension became functus officio and the second extension could not have been granted as the same was not permissible under R. 240 of the U. P. Co-operative Societies Rules. 4. That as the award was given beyond' time, it was void and all the proceedings were-non est. A perusal of the order passed by the Arbitrator and the appellate order shows that none of the pleas which have been raised in this petition were raised before the Arbitrator or before the appellate authority. It has not been mentioned in the writ petition that such pleas were raised either before the Arbitrator or before the appellate authority, while the appellate authority has not taken the same into cognizance. In view of the fact that these pleas were not raised before the Arbitrator, the petitioner is not entitled to raise them for the first time in the writ petition. 4. Sri Bishun Singh, learned counsel, contended that the matter goes to the root of jurisdiction and the same can be looked into. Even if this contention of the learned counsel is accepted, it will be found that the first two grounds raised are without any merit. So far as summoning and non-summoning of the record is concerned, it is clear that the petitioner who was allowed to file copies of the documents, ultimately filed the copies of certain documents and participated in the proceedings and it has nowhere been alleged that because he was not allowed to summon the record and instead was asked to file copies of the same, prejudice has been caused to him. Similarly so far as amendment application is concerned, the Arbitrator allowed the amendment application on payment of costs which was accepted on behalf of the petitioner and the petitioner also sought certain clarifications in respect of those amendments and participated in the proceedings.
Similarly so far as amendment application is concerned, the Arbitrator allowed the amendment application on payment of costs which was accepted on behalf of the petitioner and the petitioner also sought certain clarifications in respect of those amendments and participated in the proceedings. By means of the said amendment application the Arbitrator allowed certain claim to be put in and the opposite party was allowed to file certain documents which could have been done by the Arbitrator. Thus on merits also the contention which has been raised by the learned counsel has got no force. 5. So far as grounds 3 and 4 are concerned, they are rather inter-linked with each other. A reference was made to R. 240 of the U. P. Co-operative Societies Rules. Learned counsel contended that in view of the said rule, the Registrar was empowered to grant only one extension and the subsequent extension which was granted by the Registrar was without jurisdiction and as such the entire proceedings are nullity. Rule 240 of the U. P. Co-operative Societies Rules reads as follows: "The arbitrator or the board of arbitrators shall give an award within the time fixed by the Registrar, failing which the Registrar may either extend the time on the request of the arbitrator or the president of the board of arbitrators, as the case may be, or may take action as provided under sub-section (2) of Section 71." Section 71 (5) of the U. P. Co-operative Societies Act provides that the procedure to be followed by the Registrar, the arbitrator or the board of arbitrators in deciding a dispute and making an award under this section shall be as may be prescribed and it was contended that the rule provides that only one extension can be granted by the Registrar within which period the award is to as given, and as more than one extension has been granted by the Registrar who subsequently granted extension for two years, the Registrar acted without jurisdiction, as such the proceedings taken by the Registrar were null and void. 6. It was also contended that Section 28 of the Indian Arbitration Act specifically empowers, the court to enlarge the time for giving an award from time to time, even if time in.
6. It was also contended that Section 28 of the Indian Arbitration Act specifically empowers, the court to enlarge the time for giving an award from time to time, even if time in. making the award has expired, while under Rule 240 of the U. P. Co-operative Societies Rules, no such power has been conferred upon the Registrar to extend the time for giving the award from time to time, otherwise there -would have been a specific provision for the same and as the award was given beyond time granted for the same initially beyond which no extension was possible, the same was null ; and void. 7. Learned counsel made reference to a case decided by the Privy Council Raja Har-Narain Singh v. Chaudhrain Bhagwant Kuar (1891) 18 Ind App 55 in which reference was made to a case Chuha Mai v. Hari Ram ((1886) ILR 8 All 548) wherein it was held that if the award is not made within the period allowed by the court, the award must: be held to be invalid and no decree on its basis can be passed. In the said case before the Privy Council an order referring a suit was made by the civil court under Section 508:: of the Civil Procedure Code without fixing a time within which the award should be made and subsequently orders under Section 514 were passed correcting this mistake and the time was extended up to 20lh of March, 1885 but the award was delivered on the 24th March, 1885 and in this state of affairs after taking into consideration Section 521 of the Civil Procedure Code, as it stood then, the Privy Council held that the award was invalid. Sections 514 and 521 of the Code of Civil Procedure were included in Part V pertaining to special proceedings under the Civil Procedure Code of 1888. The said Civil Procedure Code was replaced by the Civil Procedure Code of 1908 and in this Code these provisions were included in II Schedule, which was again repealed by Section 49 (1) of the Indian Arbitration Act, 1940 which made a similar provision for extension of time. The law laid down by the Privy Council in which case there was no subsequent extension of time did not apply to the present case. 8.
The law laid down by the Privy Council in which case there was no subsequent extension of time did not apply to the present case. 8. Section 70 of the U. P. Co-operative Societies Act enumerates the disputes which may be referred to arbitration and such dis-reputes are to be decided by the Arbitrator or the Board of Arbitrators or by the Arbitrator himself, as has been mentioned in Section 71 of the U. P. Co-operative Societies Act and the procedure for the same, as has been observed above, is to be prescribed by the rules which has been done. The jurisdiction of the civil and revenue courts has been expressly included by Section 111 of the U. P. Cooperative Societies Act in respect of disputes which are referable to arbitration and arbitrators alone are to decide such disputes and the decision of the same cannot be withheld because of expiry of a particular period. The U.P. Co-operative Societies Act does not fix a period within which a dispute is to be decided or for recalling of a reference for all times to come in case the same is not decided within a particular period. 9. A plain reading of Rule 240 of the U. P- Co-operative Societies Rules shows that the Registrar is empowered on the request of the Arbitrator or the President of the Board of Arbitrators to extend the time for giving Ian award even if the same has expired provided application for the same had been . (moved. The said rule is silent as to whether the said time can be extended from time to time or this power can be exercised by the Registrar only once. 10. Rules under an Act of the Legislature are framed for carrying out the purpose of the Act and are only ancillary to the same, but the same cannot change the purpose of the Act or go against it, but are to carry out the essential policy laid down by the legislature in the enactment itself. In certain circumstances the courts are competent to :enlarge the meaning of an expression used in the statute in order to give full effect to the intention of that statute as appears from various provisions contained therein without changing the same or importing something new to it. 11.
In certain circumstances the courts are competent to :enlarge the meaning of an expression used in the statute in order to give full effect to the intention of that statute as appears from various provisions contained therein without changing the same or importing something new to it. 11. In United States v. Freeman ((1843-1846) 11 L Ed 724 (728)), it has been held that "the rule is that the meaning of the legislature may be extended, beyond the precise words used in the law, from the reason or motive upon which the Legislature proceeded, front the end in view or the purpose which was designed the limitation of the rule being that to extend the meaning to any case not included in the words, the case must 'be shown to come within the same reason upon which the law-maker proceeded, and not only within a like reason". Courts in India have also taken a similar view in such circumstances. 12. Looking to the scheme of the Act, the rules are thus to be construed and interpreted harmoniously so as to fulfil the intent of the Act and not to defeat the same. The U. P. Co-operative Societies Act provides for settlement of disputes through arbitration and this power of the Arbitrator is not taken away in case the matter is not decided within a particular time. The rules thus empower the Registrar to extend the time from time to time till the matter is not decided by the Arbitrator, which is the only forum lo decide the disputes which are referable to him and in our view even without extending the meaning of the said rule, we are of the view that Rule 240 of the U. P. Co-operative Societies Rules which is intra vires being not inconsistent with the provisions of the U. P. Co-operative Societies Act empowers the Registrar to enlarge the time for pronouncement of the award from time to time. This interpretation alone is consistent with the intent and purpose of the U. P. Co-operative Societies Act. The parties to such proceedings even if there is collusion or acts of omission and commission cannot disable an arbitrator to conclude the proceedings so long as competent authority enlarges time for giving of an award. 13.
This interpretation alone is consistent with the intent and purpose of the U. P. Co-operative Societies Act. The parties to such proceedings even if there is collusion or acts of omission and commission cannot disable an arbitrator to conclude the proceedings so long as competent authority enlarges time for giving of an award. 13. Even otherwise in this case the petitioner having also participated in the proceedings for a period of two years without any grievance on this score and he not having raised this plea before the Arbitrator or before the appellate authority and the petitioner having waived his right and having become thus consenting party to the continuation the proceedings before the Arbitrator, the petitioner is estopped from questioning the award on this ground in this writ petition. 14. In this connection a reference may be made to the observation made by the Supreme Court in Hari Krishna Wattal v. Vaikunth Nath Pandya ( (1973) 2 SCC 510 ) that "the Arbitrator gets his jurisdiction to make a binding award on an agreement between the parties to refer a dispute to him. The agreement between the parties is the foundation of the jurisdiction of the Arbitrator. Like any contract by mutual consent of the parties, the terms of the contract can be modified. Even in a case where the Arbitrator enters on the reference on an invalid agreement, it is open to the parties to enter into a fresh agreement to refer the dispute to the Arbitrator while it is pending adjudication and in such an event the proceedings before the Arbitrator can be upheld as referable to that agreement and the award will not be open to attack as without jurisdiction." (See : Waverly Jute Mills Co. Ltd. v. Raymon and Co. (India) Pvt. Ltd., ( AIR 1963 SC 90 ). "Such being the power of mutual consent of the parties in the sphere of arbitration one does not see why by mutual agreement the parties cannot enlarge the time for making the award when the Arbitrator has entered an agreement and proceeding with the arbitration." 15.
Ltd. v. Raymon and Co. (India) Pvt. Ltd., ( AIR 1963 SC 90 ). "Such being the power of mutual consent of the parties in the sphere of arbitration one does not see why by mutual agreement the parties cannot enlarge the time for making the award when the Arbitrator has entered an agreement and proceeding with the arbitration." 15. Thus the dispute having been referred to the Arbitrator and both the parties participated in the proceedings before him without objection, and thereby consented to the continuation of the proceedings by the Arbitrator, the petitioner is estopped from questioning the award and the appellate order on the ground that the award was given beyond time or after the expiry of the period of first extension by the Registrar who granted second extension for a period of two years before expiry of which the proceedings before the Arbitrator concluded. 16. In this view the writ petition has got no force and is dismissed with costs.