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1983 DIGILAW 415 (ALL)

Ram Autar Garg v. Risia Sahkari Kraya Vikraya Samiti Ltd

1983-05-25

T.S.MISRA

body1983
ORDER T.S. Misra, J. - This petition is directed against orders dated 9th December, 1974 copies of which are Annexures 27, 28, 29, 30, 31 and 32 to the writ petition. The petitioner has also prayed that the words contained in annexures 8 to 13 he also quashed. A Bench of this Court while admitting the writ petition issued rule nisi to the opposite-parties only for showing cause as to why the orders of the appellate authority dismissing the appeals as time barred be not quashed as having been passed in breach of rule 260 of the U.P. Cooperative Societies Rules. A counter-affidavit has been filed by opposite-parties Nos. 1, 2 and 3 stating. inter alia, that the appeals were barred by time. 2. It appears that the appeals in question were filed on 24th August, 1974 against the awards dated 8th August, 1973. Sub-section (1) of Section 97 of the U.P. Cooperative Societies Act provides that any person aggrieved by any award of the Registrar made under Clause (a) of sub-section (1), or Sub-section (2) of Section 71 may within thirty days after the date on which the award is communicated such person, appeal to the Tribunal. Similarly, under Section 98(h) an appeal against an award made by an arbitrator under sub-section (1) or sub- section (2) of Section 71 may be filed within 30 days of the communication of the order, decision or award to be appealed against before the authorities mentioned in sub- section (2). If the decision or the order was made by the Registrar then the appeal may be filed to the State Government but if the decision or order or award was made by any other person or authority, the appeal may be filed before the Registrar, so, both under sections 97 and 98 an appeal may be filed within thirty days from the date the award is communicated to the aggrieved person. In paragraph 33 of the petition is has been stated that the appeals were filed on 24th August, 1974 within time as the petitioner came to know of the award on 21-8-1974 when he was supplied with the certified copies of the awards. In paragraph 33 of the petition is has been stated that the appeals were filed on 24th August, 1974 within time as the petitioner came to know of the award on 21-8-1974 when he was supplied with the certified copies of the awards. However, in paragraph 17 of the petition it has been stated that the petitioner came to know only on 31st July, 1974 when abruptly citation warrants were enforced against him that some orders had been passed against him in the references. In paragraph 18 it has been stated that the petitioner made an application for issue of copy of awards on 31-7-1974 to the opposite party No. 2 who gave his reply on the copy of the same application mentioning that the copies of awards were sent to the petitioner by registered A. D. post on 9th August, 1973 which were refused by him. The opposite- party No. 2 also showed the envelopes in that connection and told the petitioner that he obtain copies as prescribed under the rules. In paragraph 19 of the petition it has been stated that the petitioner never refused any registered A. D. envelope sent to him. In paragraph 21 he says that he came to know of the awards on 21-8-1974 when he received the certified copies of the awards. Rule 260 of the U.P. Cooperative Societies Rules, 1968 provides that if the appeal presented before it appears not to have been presented within the prescribed time, it may call upon the appellant to show cause within the specified period why it should not be rejected. The rule nisi was therefore, issued to the opposite-parties to show cause as to why the orders of the appellate authority dismissing the appeals as time-barred be not quashed as having been passed in violation of rule 260. Rules 260 and 261 being material are extracted hereinbelow:- "260. Where the appellate authority finds that the appeal presented before it does not conform to any of the relevant provisions of the Act or the rules, it shall make a note to that effect and may call upon the appellant to remove the defect within the specified period, or in case the appeal appears not to have been presented within the prescribed time or by a person competent to do so, to show cause within the specified period, why it should not be rejected. 261. 261. (a) if the defect pointed out by the appellate authority is removed, or the show- cause notice is explained by the appellant to the satisfaction of the appellate authority, the latter may admit the appeal for hearing. (b) If the appellant fails to satisfy that the appeal has been presented within the prescribed time or by a person competent to do so or fails to remove the defects within the specified period, the appeal may be rejected." Under rule 260 if the appellate authority finds that the appeal has not been presented within the prescribed time, it should ask the appellant to show cause within the specified period why it should not be rejected. Under Clause (b) of rule 261 if the appellant fails to satisfy that the appeal has been presented within the prescribed time, the appeal may be rejected. A conjoint reading of rules 260 and 261 makes it quite plain that if the appeal appears to have been filed after the expiry of the prescribed period of limitation, the appellate authority shall ask the appellant to show cause within the specified period as to why the appeal should not be rejected on the ground of limitation. Rule 260 thus makes it incumbent on the appellate authority to give an opportunity to the appellant to show cause as to why the appeal was filed beyond time and if the appellant fails to give satisfactory reason for not filing the appeal within time, the appeal may be rejected. In other words, the appeal cannot be rejected on the ground of limitation unless the appellant is afforded with an opportunity of showing cause as to why the appeal was not filed within time. The appellate authority must, therefore, give an opportunity to the appellant to show cause why the appeal should not be rejected on the ground of limitation. If the appeal is rejected on the ground that it is barred by time without giving such an opportunity to the appellant, the order would be violative of the provisions of rule 260 of the U.P. Cooperative Societies Rules. A perusal of the impugned orders would indicate that no opportunity was given to the appellant (the present petitioner) by the appellate authority to show cause within a specified period why the appeals should not be rejected. A perusal of the impugned orders would indicate that no opportunity was given to the appellant (the present petitioner) by the appellate authority to show cause within a specified period why the appeals should not be rejected. The appeals were rejected outright without complying with the provisions of rule 260 of the U.P. Cooperative Societies Rules, hence the impugned orders being illegal cannot be sustained. 3. In the result, the petitioner is allowed. The impugned orders passed by the appellate authority copies of which are Annexures 27, 28, 29, 30, 31 and 32 are quashed. The appellate authority is directed to comply with the provisions of rule 260 of the U.P. Cooperative Societies Rules and give an opportunity to the petitioner to show cause within a specified period why the appeals would not be rejected on the ground,of having been filed after the expiry of the period prescribed by law. Costs on parties.