MALHARRAO v. MANAGING COMMITTEE THROUGH THE PRESIDENT
2002-04-15
A.M.SAPRE
body2002
DigiLaw.ai
A. M. SAPRE, J. ( 1 ) BY the Court.-It is not necessary for this Court to delve into the factual background of the matter because the point of issue involved in this Writ under article 227 of Constitution of India is an abstract question of law relating to the jurisdiction of the Tribunal in entertaining a Revision under Section 77, sub-section 14 of the M. P. cooperative Societies Act (for short "act") filed by respondent No. 1. The question arises on following few facts. ( 2 ) PROCEEDINGS under Section 53 (1) of the M. P. Co-operative Societies Act were initiated against the respondent No. 1 which happened to be a Managing committee of one Co-operative Society by name Sahakari Samarth Mandal maryadit Indore by the Registrar. This eventually resulted in passing an adverse order against the Managing Committee which was dissolved and a person was appointed to manage the affairs of the Society by an order dated 20. 4. 2001 passed by Assistant Registrar under Section 53 (l)-ibid. It is this order which was impugned by the respondent No. 1 by filing a revision before the Tribunal under Section 77 (14) ibid. It is this revision which was allowed by the Tribunal by impugned order dated 28. 1. 2002 (Annexure P. 8) giving rise to file a Writ under Article 227 of the Constitution of India by the petitioner. ( 3 ) HEARD Shri sonwane, L. C. for petitioners and Shri Nimgaonkar. L. C. for respondents. ( 4 ) TH main submissions of the L. C. for petitioner while attacking the impugned order of the Tribunal was that the order impugned in a revision was expressly made appellable under Section 78 (1) (a) of the Act to the registrar. L. C. urged that when an order impugned is made appellable under the Act to an appellate authority then no revision lies which is clear from the wording of Section 77 (14) which in clear terms states that revision is maintainable only when appeal does not lie against the said order. ( 5 ) L. C. for respondents supported the impugned order inter alia on the ground that petitioner has no locus to challenge the impugned order, he not being a member.
( 5 ) L. C. for respondents supported the impugned order inter alia on the ground that petitioner has no locus to challenge the impugned order, he not being a member. ( 6 ) HAVING heard the L. C. for parties and having examined the issue in the light of the legal provisions, I am inclined to allow the Writ and set aside the order impugned passed by the Tribunal. In my opinion, an order dated 20. 4. 2001 passed by the Assistant Registrar under Section 53 (1) of the Act was admittedly an order appellable under Section 78 (1) (a) of the Act to the registrar. Since the order of supersession was passed by the Assistant Registrar, and therefore, it is expressly mad appellable to the Registrar he being subordinate to the Registrar. In a situation like the one, the remedy of respondent No. 1 was to file an appeal under Section 78 (1) (a) of the Act rather than to invoke the revisional powers of the Tribunal under Section 77 (14) of the Act. Prima facie and on the face of it. no revision is tenable against an order passed under Section 53 (1) because it is made appellable under Section 78 (1) (a) of the Act. This being the legal position, an order passed by the tribunal in exercise of its revisional powers under Section 77 (14) ibid is without jurisdiction. It is not legally sustainable. An order passed without jurisdiction cannot be upheld and has to be set aside by this Court under article 227 of the Constitution of India. In a situation like the one, the question of prejudice or locus of a person is of no significance. If any illegality is brought to thee notice of the Court in exercise of its supervisory jurisdiction under article 227 of the Constitution, it is the duty of the High Court to ensure that legal mistake has to be rectified. ( 7 ) ACCORDINGLY and in view of the aforesaid discussion, the impugned order passed by the Tribunal dated 28. 1. 2002, Annexure P. 8 is set aside. Petitioner thus succeeds and is allowed. The revision application filed by the respondent No. 1 is held to be not maintainable before the Tribunal.
( 7 ) ACCORDINGLY and in view of the aforesaid discussion, the impugned order passed by the Tribunal dated 28. 1. 2002, Annexure P. 8 is set aside. Petitioner thus succeeds and is allowed. The revision application filed by the respondent No. 1 is held to be not maintainable before the Tribunal. The respondent No. 1 is granted on months time to file an appeal before the registrar under Section 78 (1) (a) of the Act against the order dated 20. 4. 2001 passed by the Assistant Registrar under Section 53 (1) of the Act. In case if any such appeal is filed by respondent No. 1. the same shall be dealt with and decided by the Registrar as an appellate authority in accordance with law on merits after giving due opportunities to all parties concerned. C. C. within a week. Petition allowed. .