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Madhya Pradesh High Court · body

2009 DIGILAW 133 (MP)

Deputy Registrar, Cooperative Societies, Tikamgarh v. Zila Thok Upbhokta Sahakari Bhandar

2009-01-27

K.C.SHARMA, P.D.MISHRA

body2009
ORDER Sharma, Chairman -- 1. This review application has been filed under section 77 (A) of the M.P. Coop. Societies Act, 1960 seeking to review the Order of the Tribunal dated 26.6.2007 passed in revision No. 134 of 2007. The applicant has preferred this application basically on the ground that the order of the Tribunal passed on 26.6.2007 is not in conformity with the provisions of section 56 of M.P. Swayatta Sahkarita Adhiniyam, 1999. Section 56 (1)(i) provides who can be a party in a dispute before the arbitration council, In clauses a to c of subsection-I of section 56 it is a dispute touching the constitution, management or business of a cooperative concerns any of the parties mention~ in these sub clauses shall be referred to the arbitration council created in the Cooperative under section 57 of the Act. The Tribunal through its order under review has however directed as follows: "The controversy regarding appointment of adhoc board is cleary a dispute touching the management of a Co-operative. Thus, the remedy lies with the arbitration council as provided under section 56 (1) of Adhiniyam, 1999. The question regarding the nature of dispute can also be decided by Arbitration Council as provided under section 56 (2) of Adhiniyam, 1999." 2. The result of the above findings of the Tribunal has been this that the Dy. Registrar who appointed the Adhoc Board of the Non Applicant No. 1 Cooperative has been summoned by the Arbitration council created by the Cooperative itself. 3. It has also been stated in the application that the order passed by the arbitration council dated 7.5.2007 and the letter of the Dy. Registrar written to the arbitration council dated 15.5.2007 were suppressed at the time of the hearing of the case by Tribunal. Therefore 'based on discovery of new and important matter of evidence' as well as there has been 'a mistake and error apparent on the face of the record' the Tribunal has been approached for making suitable modification in its judgment. 4. The counsel appearing for the non applicant has strongly opposed the application. He has submitted two documents with an application under order 41 rule 27 of CPC. He has thereby informed that the arbitration council of the non applicant coop. issued. a notice of hearing on 27.6.2007 and has ultimately passed an order on 29.6.2007 setting aside the order of the Dy. He has submitted two documents with an application under order 41 rule 27 of CPC. He has thereby informed that the arbitration council of the non applicant coop. issued. a notice of hearing on 27.6.2007 and has ultimately passed an order on 29.6.2007 setting aside the order of the Dy. Registrar Cooperative Societies passed on 1.5.2007. He has in this manner argued that since the order passed by the Tribunal on 26.6.2007 has been executed, this cannot be reviewed. 5.The learned counsel has further placed his reliance on AIR 1995 Supreme Court 455 Smt. Meera Bhanja v. Smt. Nirmala Kumari Choudhary in which the apex Court has held that review Court re-appreciating entire evidence and reversing finding of appellate Court exceeds its jurisdiction. He has also placed his other reliance on AIR 1984 Bombay 458 Rajkumar Ramavtar Chaurasia v. Mathew Cherian in which Hon'ble Court has observed as following while defining the meaning of an apparent error. "A decision erroneous in law is certainly no ground for ordering a review. If a Court had decided a point, but decided it erroneously, the error cannot be said to be one apparent on the face of the record or even analogous to it. A mere conflict or divergence of opinion cannot amount to an error apparent on the face of the record." 6. It is worthwhile here to reproduce the provision of section 56 -- "(1) If any dispute touching the constitution, management or business of a cooperative arises -- (a) among members, past members or persons claiming through member, part member or deceased member or (b) between a member, past member, or a person claiming through a member, past member or deceased member and the cooperative, its board, director, officer bearer or liquidator, past or present or (c) between the cooperative and its board and any past board, any director, office bearer or any past director, past office bearer, or the nominee, heir or legal representative of any deceased director or deceased office bearer of the cooperative, shall be referred to the Arbitration Council. (ii) between the cooperative and any other cooperative or between a cooperative and liquidator of another cooperative or any other individual or institutions shall be referred to the Cooperative Tribunal. 7. (ii) between the cooperative and any other cooperative or between a cooperative and liquidator of another cooperative or any other individual or institutions shall be referred to the Cooperative Tribunal. 7. It is important to note from the above provisions that an internal dispute of a cooperative has to be referred to the Arbitration Council constituted by it and a dispute in which cooperative is a party and there is another cooperative, a liquidator or an individual or any institutions, such disputes have to be referred to the Cooperative Tribunal. It is my pleasure here to refer to the commentary of Swayatta Sahkarita Adhiniyam, 1999 written by my esteemed colleague Shri P.D. Mishra in his erstwhile capacity as the Additional Registrar, Cooperative Societies and also a close associate in the framing of this Act which has officially been published by M.P. State Cooperative Union, Bhopal and Samarthan Centre for development support in collaboration with Sahvikas Cooperative Development Foundation, Warrangal, Andhra Pradesh. The author in his commentary of section 56 has following to record. (page 85, 86). "All internal and primary disputes of a cooperative are to be decided by the Arbitration Council. Cooperative Tribunal shall be prescribing the detailed regulations for the working of it. The Registrar or any outside agency has no role in deciding the disputes of a cooperative. When the process of decentralization of power in every field (including the deliverance of justice) is on, the cooperative like a village panchayat can well take care of such internal dispute." 8. This fact is also material in consideration of the constitution of the Arbitration Council which has been provided in section 57 as follows: "(1) The byelaws shall provide for the constitution of an Arbitration Council consisting of three members, possessing such qualifications as may be prescribed by byelaws appointed by the general body from among its members or others, whose term of Office shall be of the same duration as that of the directors. (2) The Arbitration Council shall follow such procedure and exercise such powers for settlement of disputes as may be prescribed by the Cooperative Tribunal." 9. It is evident from the above provision that the Arbitration Council is an institutional committee created for arbitrating the internal disputes of the cooperative. (2) The Arbitration Council shall follow such procedure and exercise such powers for settlement of disputes as may be prescribed by the Cooperative Tribunal." 9. It is evident from the above provision that the Arbitration Council is an institutional committee created for arbitrating the internal disputes of the cooperative. As regards a dispute touching the constitution, management or business of a cooperative arising between the cooperative and any other cooperative or any outside agencies mentioned in sub clause - it of sub section 0l of section 56 of the, Act the same has got to be referred to the Tribunal. I may further again refer to the commentary (supra) which records following in the interpretation of this provision -- "The Model Act suggested first the cooperative tribunals to hear the appeals. These tribunals were proposed to be headed by the judicial officers not below the rank of the District Judges. The referential act modified its original concept of the Arbitration Council to the Arbitral Tribunal for hearing the primary disputes of the cooperatives. The Madhya Pradesh Act retains the original idea of the Arbitration Council. There is no material difference between the two as the difference lies in the name and number only. The arbitration council consists of three members in place of five of the Arbitral Tribunal." 10. The revision No. 134/2007 under section 77 (14) of M.P. Cooperative Societies Act, 1960 was filed before the Tribunal against the order of Dy. Registrar Cooperative Societies, Tikamgarh for appointing an adhoc board under sub section 4 of section 32 of Adhiniyam, 1999. Apparently enough the contents of the revision preferred before the Tribunal could no way become the subject matter of a reference to the Arbitration Council of the non-applicant cooperative itself As the non-applicant informs about the further development by producing the order of the Arbitration Council dated 29.6.2007, even while not interfering in it, it is apt and in fitness of judicial system that if the order of the Tribunal under review becomes a citations it will be a great injury to the scheme of the Adhiniyam, 1999 and the system involved in its implementations. 11. As pointed out in application itself there is definitely the discovery of new and important matter of evidence in the form of the order of the Arbitration Council dated 7.5.2005 and the letter of the Dy. 11. As pointed out in application itself there is definitely the discovery of new and important matter of evidence in the form of the order of the Arbitration Council dated 7.5.2005 and the letter of the Dy. Registrar dated 15.5.2007 as well as the obvious mistake and error apparent on the face of the record that the Arbitration Council is at all not empowered to implead the applicant Dy. Registrar Cooperative Societies as a party before it. It will only be a mockery of judicial system when an authority empowered under the Act exercising its power is questioned by the affected party and it starts deciding its matter against that judicial authority. 12. It is a settled principle of justice that a person himself can never be his own judge. Strangely enough therefore, when the Arbitration Council of a cooperative takes a decision on the appointment or dissolution of an adhoc board in the cooperative, it is just like the left hand punishing or rewarding the right hand for some omission or commissions of it. 13. The Tribunal, therefore, quite conscious and awake and definitely under its power of review under section 77 (a) of the Act would like to modify its judgment under review. The citations given by the learned counsel for the non applicant are rather supporting the above view as the error apparent is just obvious while looking at record and it has no any long drawn process of reasoning. There can definitely not be any two opinions on the fact that any outside agency can never be made a party in the inner matters of a cooperative under consideration of the Arbitration Council created by that cooperative only. 14. The Tribunal has earlier in Miscellaneous Case No. 17/07 of Gujrat Merchantile Credit Cooperative limited v. Suyash Vikas Sakh Sahkarita, Indore in its order on 2.12.2008 dwelt on this point at length and has held as following -- "Learned counsel appearing for the applicants Shri Sanjay Bajpai argued that the arbitration council of the applicant Cooperative did not have the jurisdiction to hear the matter pertaining to the two independent Cooperatives registered under Adhiniyam, 1999. According to section 56(2) of the Adhiniyam, 1999 only M.P. State Cooperative Tribunal has the jurisdiction to hear the matters pertaining to two independent Cooperatives. According to section 56(2) of the Adhiniyam, 1999 only M.P. State Cooperative Tribunal has the jurisdiction to hear the matters pertaining to two independent Cooperatives. Moreover, it is argued that the non-applicant Cooperative constituted arbitration council to decide a matter pertaining to its business transaction with the applicant Cooperative. It amounts to a situation where a person/body tries to be its own judge. The counsel has placed his reliance on 2006 RN 212 for this purpose. It has further been argued that the rejection of the objection of the applicant is not tenable as the objection pertaining to jurisdiction can be agitated at any stage. Learned counsel has further placed his reliance on 2002 RN 359 in this respect. Non applicants have submitted a written reply which simply brings home the fact that since the applicants have not submitted reply, the objection filed pertaining to the jurisdiction could not be entertained. The above contention of the non applicant cannot be acceptable as it is a settled principle of law that the point of jurisdiction can well be agitated at any stage and particularly in a matter where the non applicants arbitration council could only decide the matters pertaining to the members and the Cooperative of the non applicant only. The arbitration council of the non applicant Cooperative was un disputedly not competent to decide the dispute which belong to two Cooperatives registered under Adhiniyam, 1999. The other objection which the non applicant Cooperative has taken is about the obligation of depositing 25% of the decreed amount incase of appeal to be entertained by the Cooperative Tribunal. This objection is also not tenable as the impugned order is not a final order and there is no amount which can be treated to have been decreed. In the light of above discussion, the appeal filed by the applicant is allowed and the impugned order passed by the arbitration council of the non applicant Cooperative on 10.2.2007 is set aside." 15. As a result of above analysis para 8 of the order under review is modified as following: "The controversy regarding the appointment of adhoc board is clearly a dispute touching the management of cooperative and since it falls under sub clause (ii) of clause-1 of section 56 it can be agitated before the Tribunal only." 16. As a result of above analysis para 8 of the order under review is modified as following: "The controversy regarding the appointment of adhoc board is clearly a dispute touching the management of cooperative and since it falls under sub clause (ii) of clause-1 of section 56 it can be agitated before the Tribunal only." 16. We would expect that the Registrar circulates this decision to his officers down the line so that they are made aware of the consistently modified view of the Tribunal.