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2002 DIGILAW 677 (CAL)

Suchitra Roy v. State of West Bengal

2002-10-09

Amitava Lala

body2002
JUDGMENT Amitava Lala, J. Under the present writ petition an appellate order of the West Bengal Co-operative Tribunal dated 21st January, 2002 in UIR Appeal No. 17 of 2000 has been challenged. Such appeal was preferred with an application for condonation of delay on the grounds that the appellant/ writ petitioner was bed-ridden for 26 days due to illness and further 13 days in collecting the order of Deputy Registrar, Co-operative Society for the service and preparation of grounds of appeal. The Tribunal was pleased to dismiss the application for condonation of delay. The ground of dismissal is that as per section 136(2) of the West Bengal Co-operative Societies Act, provision of Limitation Act, 1963 shall not apply to an appeal, therefore, application for condonation of delay cannot be held to be sustainable in law. Further, there is a right of appeal to the Registrar against an order of the Deputy Registrar. There is also a provision under section 137 of the Act to review the order of the Registrar himself. The communication in the form of a letter dated 6th March, 2000 does not come within the purview of section 96 of the Act. As a result the said appeal does not lie before the Tribunal. At best, there is an opportunity either for review or revision before the Registrar as per section 137 of the Act. Therefore, the appealability of the appeal can also not be sustainable. 2. In fact, the Tribunal in dismissing the appeal held that for the argument's sake, if we think that the present matter is appealable before the Tribunal, then the question of limitation for condonation of delay will come up before the Tribunal. Under such circumstances both the application for condonation of delay and appeal were dismissed. 3. Factually, the proposal for joint membership of the brother and sister after the death of original member had been refused by the authority i.e. Deputy Registrar, Co-operative Society (Housing). According to section 2(37) and section 9 of the Act, Registrar includes any other persons appointed under section 9 to assist the Registrar. The order impugned says that under section 85(9) of the Act the right of appeal to the Registrar arises from the order of the Registrar/ Deputy Registrar of Co-operative Society (DRCS). Therefore, two aspects are to be dealt with. The order impugned says that under section 85(9) of the Act the right of appeal to the Registrar arises from the order of the Registrar/ Deputy Registrar of Co-operative Society (DRCS). Therefore, two aspects are to be dealt with. One is appeal to the Registrar from the order of the Registrar himself and the other is right of appeal to the Registrar from the order of the DRCS considering him to be the subordinate officer of such Registrar. I reiterate that the scope and ambit of the section 85(9) of the Act which is as follows: "(9) A member of a Co-operative Housing Society in whose favour a plot of land or a house or an apartment in a multi-storied building has been allotted may transfer such plot or house or apartment, as the case may be, with the written consent of the Co-operative Housing Society, under such terms and conditions and in such manner as may be prescribed, to any other person eligible to be a member of the Co-operative Housing Society under subsection (l). If the Co-operative Houseing Society refuses to give its consent to such transfer it shall record the reasons for such refusal in writing and communicate the same to the member within one month from the date of receipt of his application in this regard, and the member shall have a right of appeal to the Registrar within such period as may be prescribed." 4. From the plain reading it appears that whenever a refusal in writing comes forward from the Co-operative Society, a member has a right of appeal to the Registrar. Nowhere it is stated that such right of appeal arises only before the Registrar or before any of the officers i.e. Deputy Registrar, Cooperative Societies(DRCS) and from there before the Registrar. Therefore when definition clause of the Act prescribes Registrar includes Deputy Registrar etc., the right of appeal before the Tribunal directing from the order of the Deputy Registrar cannot be refused. Thus reasoning of the Tribunal is fallacious. 5. Now, let me take the scope and ambit of section 137 of the Act. Section 137 says the State Government may call for and examine certain records for inquiry or inspection under the Act, or the proceedings of the Registrar or of any person subordinate to him and may make such order as it thinks fit. 5. Now, let me take the scope and ambit of section 137 of the Act. Section 137 says the State Government may call for and examine certain records for inquiry or inspection under the Act, or the proceedings of the Registrar or of any person subordinate to him and may make such order as it thinks fit. Subsection (2) says the Registrar may do so and revise the order provided the proceeding was before a person subordinate to him not vested with the powers of Registrar or acting on his authority. 6. However, sub-section(3) says nothing contained in sub-section(l) or subsection(2) shall apply to any proceeding in which an appeal lies to the Tribunal under section 136. 7. According to me, neither the Deputy Registrar of Co-operative Society(DRCS) nor Assistant Registrar of Co-operative Society(ARCS) is holding inferior post to apply the analogy of sub-section(2) of this section. Such posts are formed for the purpose of division of labour. They are the delegated authorities under the Registrar. Therefore, as per sub-section (2b) 'any person subordinate to him not vested with the power of Registrar or acting on his authority does not include the persons of such nature, as aforesaid. Therefore, at best, a review or revision can be made before the State Government under sub-section(l) of the Act whereunder State Government has power as regards the proceedings of the Registrar or of any person subordinate to him or acting on such authority. Be that as it may; where is the bar in preferring the appeal? It is clear and explicit from sub-section(3) that an appeal before the Tribunal cannot be a bar in respect of such power of review or revision by the State Government or Registrar or persons subordinate to him or acting on his behalf. Therefore, how the Tribunal can be unmindful in following the scope and ambit of the section is best known to them. 8. That apart, as per Third Schedule under section 136 of the Act, there is a specific column about the dispute of such nature. As against serial No.9 I find an appeal lies against an order of the Registrar in an appeal under sub-section(9) of section 85 to the Co-operative Tribunal within 90 days from the date of the order or from the date of which the appellant gets knowledge of the order. As against serial No.9 I find an appeal lies against an order of the Registrar in an appeal under sub-section(9) of section 85 to the Co-operative Tribunal within 90 days from the date of the order or from the date of which the appellant gets knowledge of the order. As and when it appears from the communication of the DRCS dated 6th March, 2000 that after careful review of the comprehensive legal opinion the prayer for joint membership of brother and sister is not tenable under the Act, the order cannot be said to be passed by the Housing Society but by the DRCS himself being a delegatee of such Registrar under section 85(9) of the Act. Therefore, there is no bar in preferring an appeal from such order. 9. Now, I have to deal with the part of condonation of delay by the Cooperative Tribunal. Firstly, it has to be remembered that provision of appeal is a beneficial and remedial provision for an aggrieved. If it is so, such last resort should be considered liberally. 10. The order of the Tribunal speaks that the appeal cannot be tenable in view of the provision of section 136(2) of the Act. Such section speaks that the provisions of the Limitation Act, 1963 shall not apply to an appeal. On the other hand, in respect of the powers of the Tribunal section 135(2) provides that a Tribunal shall exercise all the powers conferred upon an Appellate Court by Order 41 in the First Schedule to the Code of Civil Procedure, 1908. Therefore, I find that confusion arises to a great extent. 11. According to me, limitation under the Limitation Act is a static principle in proceeding with a matter wherein a principle of condonation of delay is a flexible and valuable principle depending upon the facts and circumstances of each case. Static limitations herein might have been exclusive part of the Limitation Act but condonation of delay cannot form an exclusive part of the Limitation Act alone. Any of the Acts either it is procedural or it is subjective or it is objective even within itself can make such provision for condonation of delay like the present one. It may be expressed or it may be implied. The legislative intent is to be understood by the Court of law. Any of the Acts either it is procedural or it is subjective or it is objective even within itself can make such provision for condonation of delay like the present one. It may be expressed or it may be implied. The legislative intent is to be understood by the Court of law. The legislative intent is that the fixed statutory principle as prescribed under the Limitation Act will not be followed in case of an appeal before the Co-operative Tribunal but a variable or flexible method at par with the Code of Civil Procedure will be followed. Therefore, it will be a complete misunderstanding if Tribunal thinks' that as because the Limitation Act is said to be applicable herein, delay cannot be condoned. Condonation of delay is a judicial discretion of the Tribunal depending upon the facts and circumstances of each case. Power of the Tribunal under section 135 is the authority of the Tribunal. Such authority cannot be avoided unless and until there is a cogent reason. As because the application is beyond the period of preferring an appeal under section 136 of the Act it cannot, ipso facto, become a cogent reason for refusal by the Tribunal under section 135 of the Act. The Tribunal is duty-bound under section 135(2) of the Act to give reasons for refusal of condonation of delay irrespective of the provisions of section 136 of the Act. Condonation of delay has to be backed by the factual matrix not by a static formula. It appears from the numerous judgments of the superior judiciary that delay for long period was condoned on various occasions wherein shortest possible period of delay had been refused because ground of condonation is relevant for the purpose. Therefore, the reasons will have to be reflected from the facts of each case as to why delay, if any, in preferring an appeal shall not be condoned. 12. Now, let me analyse the other aspect of the matter. Section 135(2) says that a Tribunal shall exercise all the powers conferred under an Appellate Court by Order 41 of Code of Civil Procedure, 1908 in the First Schedule to the Code of Civil Procedure, 1908. Therefore, the word 'shall' has significance in the matter of due consideration by the Tribunal. It cannot be construed as 'may' as implied from the judgment and order passed by the Tribunal. Therefore, the word 'shall' has significance in the matter of due consideration by the Tribunal. It cannot be construed as 'may' as implied from the judgment and order passed by the Tribunal. Of course, a second question may arise that the words 'shall not' is also available under section 136(2) of the Act, which speaks the provisions of the Limitation Act, 1963 shall not apply to appeal referred under sub-section (1). According to me, if there is any conflict in between two sections in respect of the word 'shall' having some import the words 'shall' and 'shall not' will definitely prevail over the words 'shall not'. There is a reason for drawing such inference. If anything is taken away from an Act by incorporating the words 'shall not' the same cannot be given by way of 'shall'. An affirmative statute is always override the negative statute. Therefore, when two interpretations are possible, one has to proceed on the basis of the affirmative statute as it has prevailing effect over and above the negative statute. 13. Further the question may arise that the Limitation Act is a special Act when Code of Civil Procedure is a general Act. Therefore, the special Act will have edging effect over the general Act. Firstly, such logic is not at all sustainable in view of the interpretation already given. Secondly, the Court is concerned about the provisions of a special Act which is called West Bengal Cooperative Societies Act, 1983. Once the extracts of the special Act and general Act are inserted in the Act in question it has to be taken uniformly as part and parcel of such Act not anything else. Therefore, the Court is concerned which part of the Act in question is beneficial for the people not with regard to source of such part of the Act. That is the policy of the creature. The nomenclature of any Act or Code is mere indication of the source. But the interpretation the parts of the statute, the question is independent from the nomenclature of the source. For an example, the particular Schedule i.e. Third Schedule under section 136 of the Act says that either the appeal will be made within 90 days from the date of the order or from the date on which the appellant gets knowledge of the order. For an example, the particular Schedule i.e. Third Schedule under section 136 of the Act says that either the appeal will be made within 90 days from the date of the order or from the date on which the appellant gets knowledge of the order. If, the 90 days period is specific in view of section 136(2) of the Act and knowledge comes thereafter, what will happen? Appeal will not be allowed to prefer. Therefore delay cannot be condoned by the Tribunal is an absurd proposition of law. On the other hand it can be safely said that by excluding the application of Limitation Act, legislature has given discretionery power to the Tribunal at par with the Code of Civil Procedure to condone the delay on the basis of the facts and circumstances of each case. The next question is how the knowledge will be understood unless and until factual aspect of such knowledge is to be taken into account by the Tribunal? Hence, the Tribunal has no other alternative but to go into the merit of the condonation of delay in preferring such appeal. These aspects of the matter are controlled by section 135(2) of the Act. Hence, inapplicability of the Limitation Act as per section 136(2) cannot be an exclusive bar to the Tribunal but an escape to the Tribunal. 14. Coming back to Order 41 of the Code of Civil Procedure in the light of the section 135(2) of the Act I find that there is a provision for condonation of delay independent from the Limitation Act. Rule 3A (inserted by way of amendment of the Code in 1976) says that when an appeal is presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application supported by the affidavit setting forth the facts on which the appellant relies to satisfy the Court that he has sufficient cause for not preferring the appeal within such period. Hence, power of condoning the delay is expressly available to the Tribunal. Therefore, if the applicability of the Limitation Act is taken away by the legislature then the limitation will be governed only by the West Bengal Co-operative Societies Act itself with the given discretion for condonation of delay. 15. Against these background of the case, I find two dates are important for the purpose. Therefore, if the applicability of the Limitation Act is taken away by the legislature then the limitation will be governed only by the West Bengal Co-operative Societies Act itself with the given discretion for condonation of delay. 15. Against these background of the case, I find two dates are important for the purpose. One is communication of the letter in the form of the gist of the order dated 6th March, 2000 and the other is the date of preferring an appeal on 19th April, 2000. If both dates are taken together, there is no delay. However, it is entirely for the Tribunal to consider such part. 16. Under these circumstances, I am of the view that the judgment and order impugned cannot be sustained. Therefore, the order dated 21st January, 2002 stands set aside. The Co-operative Tribunal is hereby requested to proceed with the matter afresh at the earliest. It is recorded hereunder that this Court has not gone into the merit of the case. However, no order is passed as to costs. 17. Let an urgent xeroxed certified copy of this judgment, if applied for, be given to the learned Advocates for the parties within two weeks from the date of putting in the requisites.