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1990 DIGILAW 406 (KER)

Sukumaran Pillai v. Co-operative Tribunal

1990-10-10

THOMAS

body1990
Judgment :- The Kerala Co-operative Tribunal (for short 'the Tribunal') rejected a revision petition filed by the petitioner challenging an order passed by the arbitrator appointed by the Joint Registrar of Co-operative Societies to dispose of an election case. The Tribunal took the view that the revision is not maintainable, firstly because the revision petition was filed before the expiry of 60 days of the order challenged and secondly because no revision will lie so long as no appeal would lie against the order. Ext.P6 is the order by which the Tribunal rejected the revision petition. Ext.P6 is challenged in this Original Petition filed by the petitioner under S.226 of the Constitution. 2. Petitioner was declared elected to the Board of Directors of Chempazhanthi Service Co-operative Society (for short 'the Society') in the election held on 27-9-87. One of the defeated candidates (third respondent) filed an election petition under S.69 of the Kerala Co-operative Societies Act, 1969 (for short 'the Act'). The Joint Registrar of Co-operative Societies, on receipt of the election petition, referred the dispute for disposal to an arbitrator appointed by him. Petitioner expressed want of confidence in the personnel of the arbitrator so appointed. (It was the 2nd respondent who was appointed as arbitrator. Petitioner's objection against him is on the ground that he was a member of the erstwhile Board of Directors against which serious allegations were made by some of the members including the petitioner). On the insistence of the petitioner, the question regarding competence of the 2nd respondent as arbitrator was heard and decided by the 2nd respondent himself as a preliminary issue. By Ext.P4 order, the 2nd respondent overruled the objections. It was Ext.P4 order, which the petitioner challenged before the Tribunal by filing a revision petition. 3. According to the Tribunal, the finding or order was communicated to the petitioner on 25-11-88 and the revision petition-was filed on 9-12-88 which is before the expiry of 60 days from the date of communication and "therefore even assuming that an appeal is maintainable from an order on preliminary issue, no revision will lie since 60 days has not elapsed from the date of communication of the impugned order." The Tribunal did not rest with that. After holding that no appeal will lie against such an order, the Tribunal further held that" if no appeal is maintainable, no revision also will lie under S.84 of the Act." 4.1 have no doubt that no appeal will lie against Ext.P4 order. Learned counsel for the petitioner himself did not canvas for a contrary position. A revision is provided under S.84 of the Act. S.84 reads thus: "Revision by Tribunal: -The Tribunal may call for and examine the record of any proceedings in which an appeal lies to it for the purpose of satisfying itself as to the legality or propriety of any decision or order passed and if in any case it shall appear to the Tribunal that any such decision or order should be modified, annulled or revised, the Tribunal may pass such order thereon as it may deem fit: Provided that the Tribunal shall not take any action under this section if: (a) the time for appeal against the decision or order has not expired; or (b) the decision or order has been made the subject matter of an appeal: Provided further that no order shall be made under this section unless notice has been given to all interested parties and they have been given a reasonable opportunity of being heard". The first proviso inhibits the Tribunal from taking any action on the revision petition if the time for appeal has not expired or if the decision has been made subject matter of an appeal. The proviso makes it clear that even appealable orders can be revised by the Tribunal in exercise of the powers under S.84, but such exercise shall not be made until the expiry of appeal time or when appeal has actually been preferred. There is no restriction against filing a revision petition before the expiry of appeal time. The restriction is against the Tribunal taking action on the revision petition until the expiry of appeal time or if an appeal has been preferred in the meantime. The object of the restriction is very evident that when appeal jurisdiction has been invoked or could be invoked, a more limited jurisdiction like revision need not be exercised. That apart, the reasoning of the Tribunal that a revision petition filed before appeal time is not maintainable, is outside the scope of this case since both sides agreed that no appeal would lie against the order. That apart, the reasoning of the Tribunal that a revision petition filed before appeal time is not maintainable, is outside the scope of this case since both sides agreed that no appeal would lie against the order. 5. What falls for consideration next is whether revisional jurisdiction provided under S.84 of the Act is exercisable only in respect of an appealable order. Unless the statute debars the revisional jurisdiction envisaged therein against all non-appealable orders in explicit terms, I doubt, whether all non-appealable orders are unrevisable. It has to be pointed out that there is no express term imposing any such prohibition in S.84. When statutes provide revisional jurisdiction, generally non-appealable orders are made revisable. When an appeal is provided by a statute, generally such statute would bar a revision against appealable orders at the instance of the party who could have filed the appeal. That general approach appears to have been departed from in S.84. Under the said provision revisional jurisdiction can be exercised in respect of any decision whether appealable or not. The intention is gatherable from these words in S.84: "for the Purpose of satisfying itself as to the legality or propriety of any decision or order passed". The preceding words "...record of any proceedings in which an appeal lies to it" are not to be interpreted as imposing a restriction that revisional jurisdiction can be exercised only in respect of appealable orders. Here, proceedings are those relating to an election dispute filed under S.69 of the Act. S.70 of the Act says that the Registrar may, on receipt of the reference of a dispute under 69: (a) elect to decide the dispute himself or (b) transfer it for disposal to any person who has been invested by the Government with powers in that behalf; or (c) refer it for disposal to an arbitrator appointed by the Registrar. S.82 says that any person aggrieved by any decision of the Registrar or any decision of the person invested by the Government with powers in that behalf may file an appeal. But all decisions made by the arbitrator cannot be appealed against. An appeal can be filed only against the award of the arbitrator passed under S.70(3). Any decision made by the arbitrator in such cases would normally relate to the record of proceedings in which an award has to be passed by him. But all decisions made by the arbitrator cannot be appealed against. An appeal can be filed only against the award of the arbitrator passed under S.70(3). Any decision made by the arbitrator in such cases would normally relate to the record of proceedings in which an award has to be passed by him. Since an award is appealable, the Tribunal has revisional jurisdiction to call for and examine the record of any such proceedings for the purpose of satisfying itself "as to the legality or propriety of any decision or order passed". The conclusion is that revisional jurisdiction of the Tribunal is not debarred against Ext.P4 order merely because the order is non-appealable. In the aforesaid view of the matter, I quash Ext.P6. I direct the Tribunal to dispose of Ext.P5 revision petition in accordance with law and in the light of the observations made above, within two months from the date of receipt of a copy of this judgment, after affording reasonable opportunity of hearing to all parties concerned. Original Petition is disposed of in the above terms. Issue carbon copy on usual terms.