Amar Singh Rathor v. District Magistrate Fatehpur — 1991 DIGILAW 507 (ALL)

JUDGMENT N.N. Mithal, J. - Against an award given by the S D.M. an appeal was filed before the District Magistrate. An objection was taken that the District Magistrate had no jurisdiction to entertain the appeal. That objection has been rejected by the impugned order dated 14-2-1991 (Annexure 4 to the writ petition). 2. A dispute was raised by respondent No. 2 under Section 70 of the U.P. Co-operative Societies Act, 1965 and a reference was made to the Registrar/District Magistrate, Fatehpur. The Registrar referred the matter to the Sub-Divisional Magistrate who was appointed arbitrator. He decided the same vide his order dated 27th August, 1990. 3. Aggrieved by the order passed by the Arbitrator/S.D.M. an appeal under Section 98 of the U.P. Co-operative Societies Act was filed before the Registrar. Notices were consequently issued by the Registrar/ District Magistrate in pursuance of which the petitioner filed an objection before him raising the question of jurisdiction. The ground was that the District Magistrate has no jurisdiction to hear the appeal. Earlier a writ petition was also filed in this Court for a direction that the District Magistrate may not proceed any further with the hearing of the appeal. The said petition was disposed of by order dated 8-1-1991 with a direction that the question of jurisdiction raised by the petitioner will first be decided by the District Magistrate before hearing the appeal. 4. Subsequent to the order passed by this Court the District Magistrate decided the objection by the impugned order dated 14-2-1991 holding that the appeal lay to him and that there was no lack of jurisdiction. Aggrieved by that order the present petition has been filed. 5. The main submission of the learned counsel for the petitioner is that the reference is made to the District Magistrate as Arbitrator and he himself having delegated the work for arbitration to the S.D.M. cannot himself bear the appeal against the order passed by his own delegatee, the S.D.M. 6. We have heard learned counsel for the parties at length who have very elaborately pointed out the relevant provisions. It is not disputed that the dispute raised by respondent No. 2 was one which was cover;0d by sub- section (1) of Section 70 of the U.P. Co-operative Societies Act. We have heard learned counsel for the parties at length who have very elaborately pointed out the relevant provisions. It is not disputed that the dispute raised by respondent No. 2 was one which was cover;0d by sub- section (1) of Section 70 of the U.P. Co-operative Societies Act. According to that sub-section whenever such a dispute is raised the same shall be "referred to the Registrar for action in accordance with the provisions of this Act and the rules......". Section 71 of the Act lays down the procedure when a reference of a dispute for arbitration is made. The relevant portion of the section reads as under : 71. Reference to dispute to arbitration : On receipt of a reference under sub-section (1) of Section 70, the Registrar may, subject to the provisions of the rules, if any (a) decide the dispute himself, or (b) refer it for decision to an arbitrator appointed by him, or (c) refer it, if the parties so request in writing, for decision to a board of arbitrators consisting of the three persons to be appointed in the prescribed manner. 7. A reading of these two provisions will show that whenever a dispute arises the matter is to be referred to the Registrar but this reference to the Registrar is not for entering upon arbitration but only for taking action in accordance with the provisions of the Act and the Rules. The Registrar power in this regard is merely in the nature of an agent to have the matter decided by an Arbitrator and such Arbitrator may be the Registrar himself or an Arbitrator appointed by him or the Board of Arbitrators, if the parties pray for this For the purposes of Sections 70 and 71 rules have been framed and Chapter XVIII of the rules deals with the statement of dispute. Rule 225 lays down that a dispute relating to any matter covered by Section 70 shall be raised on a prescribed form by an aggrieved party who shall apply to the Registrar stating the substance of the dispute and the claim. Rule 229 enumerates various kinds of disputes which may arise and it also provides for authorities who are to decide the particular matter by arbitration in respect of each of them. Rule 229 enumerates various kinds of disputes which may arise and it also provides for authorities who are to decide the particular matter by arbitration in respect of each of them. Sub-clause (2) of this rule lays down as under : (2) Where the dispute relates to the constitution of the committee of management or election or appointment of any office-bearer or a delegates of a co-operative society, reference shall : (a) ............................... (b) in the case of an apex co-operative society, be made to the District Magistrate of the district to which the society belongs. 8. Rule 230, in so fa: as it is relevant for our purpose reads as under : "230. On receipt of a reference under Rule 229 : (a) to (d) ................................ (e) the District Magistrate may decide the dispute himself or appoint any one of the Sub-divisional Magistrates under him to act as arbitrator or as president of board of arbitrators, as the case may be." 9. On a reading of Rules 225, 229 and 230 it will be evident that when a dispute is referred under the provisions of Rule 229(2) (b), as in the instant case, reference shall be made to the District Magistrate. When read with Rule 230(e) the District Magistrate may either himself decide the dispute or may appoint any one of the Sub-divisional Magistrates under him to act as an arbitrator. In this case when the reference of dispute was made according to Rule 229 (2) (b) the reference had to be made to the District Magistrate (Here we may point out that the District Magistrate has been conferred with powers of Registrar under the Act vide Government Order dated (sic). The District Magistrate is empowered by Rule 230 (e) to adopt any of the three alternative modes for deciding the dispute. He may decide the dispute himself or may appoint any one of the Sub-Divisional Magistrates under him as Arbitrator or refer it to a Board of Arbitrators. 10. The argument of the learned counsel for the petitioner was that when on a reference being made to him the Registrar chooses that he shall not decide the dispute himself, he can refer it for decision to an arbitrator appointed by him. It is significant to note that the word "appointed" has been used in Section 71 (1) (b) as also in Rule 230 (e). It is significant to note that the word "appointed" has been used in Section 71 (1) (b) as also in Rule 230 (e). The arbitrator who is appointed, therefore, is not a delegates from the District Magistrate or the Registrar but he happens to be a person holding an independent position as an arbitrator. While discharging the duties as an arbitrator he does not act as a subordinate to the District Magistrate and his powers are in no way dependent upon the directions the District Magistrate may issue, despite the powers of the District Magistrate to withdraw any matter referred to an appointed arbitrator. In this connection Section 98 of the Act may also be referred which provides for appeals against the award etc. Relevant portion of the section reads as under : (1) An appeal against : (a) to (g) ..... .............................. (b) an award made by an arbitrator or board of arbitrators under sub-section (1) or sub-section (2) of Section 71 : (i) to (n) ... ................................. may, within thirty days of the communication of the order, decision or award to be appealed against, be preferred by the aggrieved party to the authorities mentioned in sub-section (2) in the manner prescribed. Sub-clause (2) An appeal under clauses (d), (f), (g), (k), and (i) of sub-section (1) shall be referred to the Tribunal, and an appeal under clauses (a), (b), (c), (e), (h), (i), (j), (m) and (n) of the said sub-section shall be preferred : (a) if the decision or the order was made by the Registrar, to the State Govt. ; or (b) if the decision or order or award was made by any other person or authority, to the Registrar. 11. It is not disputed that the appeal here shall lie under sub-clause (h) of Section 98 (1). The question is whether the decision in this case will be deemed to have been made by the Registrar' or by 'other person' or authority'. The submission of Sri A. Kumar for the petitioner was that the Sub- Divisional Magistrate acted only at the behest of the District Magistrate as Registrar and, therefore, he was exercising the same powers as the Registrar while deciding the dispute as an arbitrator. The submission of Sri A. Kumar for the petitioner was that the Sub- Divisional Magistrate acted only at the behest of the District Magistrate as Registrar and, therefore, he was exercising the same powers as the Registrar while deciding the dispute as an arbitrator. The contention of Sri Triloki Nath, counsel for the respondent was that the decision given by the Sub- Divisional Magistrate was not in his capacity as Registrar or as a delegates of Registrar but the same was in his independent character as arbitrator appointed under Section 71 (I) (b). 12. As we have seen earlier the words 'Registrar and District Magistrate' have not been used as interchangeable as Sections 70 and 71 refer to the powers of the Registrar, Authority of District Magistrate emerges only under Rule 229 (2) (b) where it is said that the reference in respect of the dispute relating to constitution etc. of a Co-operative Society shall be made to the District Magistrate. Even the District Magistrate has been given the power either to arbitrate himself or appoint Sub-Divisional Magistrate under him as the Arbitrator. We have already seen the significance of the word 'appoint' and this appointment makes the status of the Sub-Divisional Magistrate as an independent entity. He decides the matter as arbitrator and, therefore, for the purposes of Section 98 (2) (b) it will be deemed that it was an award made by any other person or authority'. Obviously, this decision by the S.D.M. as arbitrator cannot be termed as the decision of Registrar. It could be a decision by the Registrar only if on a reference of dispute being made, he had decided to arbitrate in the matter himself. This having not been done and he having appointed the S.D.M. to arbitrate in the matter it shows that it was a decision not by the Registrar but by a person other than the Registrar. That being so we are clearly of the opinion that the appeal against the decision of the arbitrator under Section 98 shall lie to the Registrar and not to the State Govt. as contended by the petitioner. 13. Accordingly, we do not find any illegality in the impugned order. The writ petition has no merit and is dismissed.