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2016 DIGILAW 2070 (ALL)

Saroj Sagar v. Co-Operative Tribunal

2016-05-27

UMESH CHANDRA SRIVASTAVA, V.K.SHUKLA

body2016
JUDGMENT Ref: Delay Condonation Application For the reasons stated in the affidavit, filed in support of Delay Condonation Application, as the same constitutes sufficient cause for condoning the delay in filing Special Appeal, the Delay Condonation Application is allowed. Special Appeal is treated to have been filed well within time. Ref: Special Appeal Smt. Saroj Sagar is before this Court assailing the validity of the order dated 19.4.2016 passed by the learned Single Judge in Writ Petition No. 67252 of 2010 (Smt. Saroj Sagar Vs. Cooperative Tribunal, U.P., Lucknow & others) wherein the learned Single Judge has refused to intervene with the order dated 31.8.2010 passed by the Cooperative Tribunal in Appeal No. 285 of 2008 preferred under Section 98 of the U.P. Cooperative Societies Act, 1965. Brief background of the case, as is reflected from the record in question, is that there has been a scheme known as Panchsheel Cooperative Housing Society Ltd. Bareilly wherein Plot No. 95 has been allotted in the name of Ratan Lal, who has been member of the said society. This much is also reflected that proceedings under Section 70 of the 1965 Act were initiated for cancellation of the sale-deed dated 23.8.1997 on the ground as same has been obtained by fraud. In order to effectuate resale of the plot in question this is also reflected that an ex-parte award has been passed on 29.4.2004 declaring the sale-deed null and void and during this interregnum period the plot in question has been allotted to petitioner appellant vide registered sale-deed dated 25.1.2005 and the award dated 29.4.2004 has been subjected to challenge in Appeal No. 97 of 1996 and same has been allowed on 9.10.2007 with a direction to take fresh decision in the matter after giving opportunity of hearing to the parties concerned. The matter has again been heard and another award dated 4.12.2008 has been passed wherein the earlier award dated 29.4.2004 has been maintained. The said award has been subjected to challenge before the Cooperative Tribunal in Appeal No. 285 of 2010 and the Cooperative Tribunal vide order dated 31.8.2010 has formed the opinion that the findings recorded by the Arbitrator are perverse and awards have been set-aside. The said order of Cooperative Tribunal has been subjected to challenge before the learned Single Judge by preferring Writ Petition No. 67252 of 2010 (Smt. Saroj Sagar Vs. The said order of Cooperative Tribunal has been subjected to challenge before the learned Single Judge by preferring Writ Petition No. 67252 of 2010 (Smt. Saroj Sagar Vs. Cooperative Tribunal, U.P., Lucknow & others) and learned Single Judge has proceeded to dismiss the writ petition in question and against the same present special appeal has been filed by the petitioner appellant. On the matter being taken up today, at the very outset, learned Standing Counsel pointed out that present special appeal is not at all competent and maintainable keeping in view the provisions as are contained under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952. Before we deal with the subject, it would be worthwhile to look into the provisions of Chapter VIII Rule 5. Special Appeal in question is provided for under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 and the same reads as follows: (i) Chapter VIII Rule 5 Rule 5 of Chapter VIII, as it stands at present, reads as follows: "5. Special appeal.- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award-(a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge." The provisions of Chapter VIII Rule 5 would go to show that an appeal lies, first and foremost, from a judgement. Rules 5 then proceeds to lay down the expected categories or exclusions where a special appeal will not be maintainable. Rules 5 then proceeds to lay down the expected categories or exclusions where a special appeal will not be maintainable. The exclusions, which have been specified in Rule 5, are: "(i) A judgment passed in the exercise of the appellate jurisdiction in respect of a decree or order made by a court subject to the superintendence of the Court; (ii) An order made in the exercise of revisional jurisdiction; (iii) An order made in the exercise of the power of superintendence; (iv) An order made in the exercise of criminal jurisdiction; (v) An order made in the exercise of jurisdiction conferred by Articles 226 or 227 of the Constitution in respect of any judgment, order or award : (a) of a tribunal, court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or Central Act, with respect to a matter contained in the State List or the Concurrent List to the Seventh Schedule of the Constitution; or (b) of the government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act." On the parameters of the provisions, quoted above, this much is clearly reflected in the present case that as far as provisions of 1965 Act are concerned, same are clearly referable to List II of the State List Item No. 32 wherein the State is competent to frame laws in reference of incorporation, regulation and winding up of corporations, other than those specified in List I, and universities, unincorporated trading, literary, scientific, religious and other societies and associations, co-operative societies. Thus it is clear that the provisions of 1965 Act are clearly covered under the State List, as has been mentioned in Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 and under the aforementioned provisions in question once the proceedings in question are emanating under the U.P. Cooperative Societies Act, 1965 framed under List II of State List and there is a remedy of appeal and revision provided for, then special appeal is clearly prohibited. Here, in the present case, the proceedings in question have been undertaken by approaching the arbitrator forum, as has been provided under Section 70 of 1965 Act and, thereafter, against the order passed, the appeal in question has been preferred and said appeal has been allowed, then the provisions of Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, clearly prohibits filing of special appeal before this Court, accordingly, present special appeal is not at all competent and maintainable and same is dismissed in limne.