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2008 DIGILAW 73 (JK)

J&K Co-operative Supply & Mktg. Fed. Ltd. v. Bhagwati Rice Mills Through iIs Prop. Kewal Krishan

2008-03-24

D.K.Kapoor

body2008
1. A short but important question of law has been mooted by the petitioner through this review petition, in as much as, this Tribunal has been asked to review its earlier order dated 8.3.2004, by virtue of which the Tribunal declared that the revision petition filed by the petitioner before it was without any merit and accordingly dismissed the same with costs of Rs.5,000/-. The main ground in this review petition is that the petitioner herein filed a petition in terms of Sections 63 & 64 of Cooperative Societies Act, 1960 (hereinafter referred to as "the Act") for the recovery of Rs.2,43,511.35 from respondent No.1. The Registrar, Cooperative Societies, J&K, before whom the said petition was presented, however, transferred the same to be decided by the Deputy Registrar, Cooperative Societies, Jammu (Land Development Bank, Jammu), who vide order dated 5.12.1995, disallowed the claim of the petitioner allowed the counter claim of the respondents for an amount of Rs.71,587/-. The petitioner herein preferred an appeal before the Registrar, Cooperative Societies, Jammu against the aforesaid order of the Deputy Registrar, Cooperative Societies, Jammu, but the former transferred this appeal to the Addl. Registrar, Cooperative Societies, Jammu, for disposal vide his order dated 26.5.2000. The Addl. Registrar, Cooperative Societies, Jammu, however, dismissed the appeal vide order dated 9.2.2001. The matter was assailed before this Tribunal and the Tribunal also dismissed the petition and imposed a cost of Rs.5, 000/- on the petitioner. The petitioner, feeling aggrieved, has made an application for review of the order dated 8.3.2004 passed by this Tribunal on the sole ground that the Special Tribunal ignored the legal aspect of the matter that the Registrar Co-op. Societies was not competent to transfer the appeal to Addl. Registrar Co-op Societies for disposal and dismissed the petition on the facts only. 2. The record has been called for and perused. I have also heard the arguments addressed by the learned counsel for the parties. Sh. C.M.Gupta, learned Advocate appearing on behalf of the applicant has submitted that the Registrar, Cooperative Societies, J&K, ought to have decided the appeal himself as he has no authority to transfer this appeal to any person including the Addl. Registrar, Cooperative Societies, Jammu. According to Sh. Gupta, any order passed by an authority which is not competent to decide the same, is by itself a nullity. Registrar, Cooperative Societies, Jammu. According to Sh. Gupta, any order passed by an authority which is not competent to decide the same, is by itself a nullity. This aspect of the matter was brought to the notice of the then Hon'ble Member of this Special Tribunal but the same has been ignored in his appreciation in the order dated 8.3.2004. On the other hand, Sh. B.D. Sundan, learned Advocate, appearing on behalf of the respondent No.1 has submitted that this review petition is without any provision of law and is filed only in order to harass respondent No.1. According to him, Hon'ble Member (Syed T.A. Naqshbandi) has rightly dismissed the revision petition on 8.3.2004 and the powers exercised by the Addl. Registrar, Cooperative Societies, Jammu, are rightly exercised by him and the same cannot be reviewed as sought for by the applicant. 3. This Tribunal derives power to review its own order from Section 105 of the Cooperative Societies, Act, 1960, which can be profitably reproduced herein below.- "105. Review. -- (1) The Government or the Tribunal, as the case may be, may either on the application of the Registrar or on the application of any party interested, review its own order in any case and pass in reference thereto such order it thinks fit. Provided that no such application shall be entertained unless the Government or the Tribunal, as the case may be, is satisfied that there has been a discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when its order was passed or that there has been some mistake or error apparent on the face of record or for any other sufficient reason: Provided further that no such order shall be made under this sub-section unless notice has been given to all interested parties and they have been given a reasonable opportunity of being heard. (2) An application for review under sub section (1) by any party shall be made within ninety days from the date of communication of the order of the Government or of the Tribunal." As per Sub-section (2) of Section 105 of the Act, an application for review by any interested party may lie before the Government (now Special Tribunal) to review its own order in any case and in that case this Tribunal is empowered to pass any order as it thinks fit, subject to the condition that the application for review is filed within ninety days from the date of communication of order of the Govt. The other requisite conditions for review of its earlier order are that the Tribunal is required to be satisfied, on entertaining the application for review, that there has been discovery of new and important matter and, among other grounds, there has been some mistake or error apparent on the face of record or for any other sufficient reason. The application for review has to be decided by the Tribunal only after giving reasonable opportunity to all the interested parties and, of course, after hearing them. This makes it clear that there is no legal impediment for this Tribunal to review `its own order' under the provisions of Section 105 of the Act. 4. The application for review has to be decided by the Tribunal only after giving reasonable opportunity to all the interested parties and, of course, after hearing them. This makes it clear that there is no legal impediment for this Tribunal to review `its own order' under the provisions of Section 105 of the Act. 4. It is an admitted fact that under Sub-section (2) of Section 103 of the Act, an appeal `against any decision, award or order under Sub Section (1) shall be made within sixty days from the date of decision, award or order to the following Authority.- a. if the decision, award or order was made by the Registrar, to the Government; b. If the decision, award or order was made by any other person or a cooperative society, to the Registrar; An `Explanation' appended at the end of Section 103 of the Act provides that "for the purposes of this section the Registrar shall not include any person exercising all or any of the powers of the Registrar." This is amply clear from the bare reading of Sub-section (2)(b) of Section 103 of the Act that it is the Registrar, Cooperative Societies, J&K, and the Registrar, Cooperative Societies, J&K, alone who is competent to hear the appeals against the decision, award or order made by any person subordinate to him or a co-op society .A bare reading of Section 103 (2)(b) of the Act shows that it does not conceive of any person, authority or officer ,other than the Registrar to hear appeal if the decision, award or order was made by any person (subordinate to him) or a co-operative society. In the facts & circumstances of this case, an appeal was preferred against the order of the Deputy Registrar, Cooperative Societies, Jammu, before the Registrar, Cooperative Societies, J&K, but the later, vide order dated 26.5.2000, transferred the same to the Addl. Registrar, Cooperative Societies, Jammu, for disposal, which course was not available to him. The Act nowhere prescribes for the delegation of such power of the Registrar, Cooperative Societies, J&K. The only course that was open to the Registrar, Cooperative Societies, J&K, was to decide the appeal himself without transferring or assigning it to any other person/Authority including the Additional Registrar, Cooperative Societies, Jammu. The order dated 26.5.2000 passed by the Registrar, Cooperative Societies, J&K, thus suffers from patent illegality on two counts. The order dated 26.5.2000 passed by the Registrar, Cooperative Societies, J&K, thus suffers from patent illegality on two counts. One, that the Registrar, Cooperative Societies, J&K, was not competent to transfer the appeal filed before him against the order of Deputy Registrar Co-op Societies for decision under Section 103(2)(b) of the Act, to the Addl. Registrar, Cooperative Societies, Jammu, as he had no power under the Act, 1960. Two- the order passed by the Addl. Registrar, Cooperative Societies, Jammu, on account of the appeal transferred to him is nullity due to the fact that he has no power to decide the said appeal. The order of this Tribunal dated 8.3.2004, therefore, certainly suffers from an error of law, which is discernible on the face of record. Any order passed by making departure from the relevant law is by itself a nullity and there is no impediment in reviewing such an order. The order dated 8.3.2004, passed by this Tribunal is therefore reviewed and held that the findings arrived at by this Tribunal vide order dated 8.3.2004, cannot sustain. The order dated 08.3.2004 passed by this Tribunal is accordingly reviewed. 5. As a consequence of this discussion, it is held that the order passed by the Addl. Registrar, Cooperative Societies, Jammu, dated 9.2.2001, dismissing the arbitration application preferred before the Registrar, Cooperative Societies, J&K, by the petitioner herein and transferred by the later, to the Addl. Registrar, Cooperative Societies, Jammu, without any authority, is by itself nullity and has been passed by a person/Authority who was not competent/empowered to pass such an order. 6. This order of the Addl. Registrar, Cooperative Societies, Jammu, dated 9.2.2001, is accordingly set aside. The matter is remanded to the Registrar, Cooperative Societies, J&K, with the direction that he shall hear the parties afresh on the original appeal and pass appropriate order within a period of two months positively. The parties through Advocates are directed to appear before him on 30.4.2008. The concerned clerk shall complete the file in all respects and send the relevant record along with copy of this order to the Registrar, Cooperative Societies, J&K, so as to reach him well before the appointed date of hearing. 7. After due completion, file of this Tribunal be consigned to records.