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2016 DIGILAW 83 (MAN)

Keirak Gram Panchayat Level Multipurpose Co-operative Societies Ltd. v. Wabagai Keirak Gram Panchayat Level Multipurpose Co-operative Societies Ltd.

2016-06-20

KH.NOBIN SINGH

body2016
JUDGMENT AND ORDER : 1. Heard Shri A. Sachikumar, learned counsel appearing for the petitioner; Shri R.K. Nokulsana, learned Sr. Advocate assisted by Shri Danny H., Advocate appearing for the respondent Nos. 1 to 5, Shri L. Anand, learned counsel appearing for the respondent Nos. 10, 11 and 12 and Smt. Th. Sobhana, learned Government Advocate appearing for the respondent Nos. 6, 7, 8 and 9. 2. The instant writ petition has been filed by the petitioner society questioning and challenging the judgment and order dated 29-10-2013 passed by the Manipur State Co-operative Tribunal, Lamphelpat (herein after referred to as the “Tribunal”) in Co-operative Case No. 3 of 2013 on the ground of lack of jurisdiction. 3.1 Since the issue involved herein is purely a question of law as to the interpretation of the provisions of Section 149 and 152 of the Manipur Co-operative Societies Act, 1976 (hereafter referred to as the “Act”), the detailed facts are not required to be narrated herein. However, certain facts which are required in order to appreciate the question of law, are being narrated herein. 3.2 The facts as borne out from the materials placed on record by the parties are that the petitioner namely Keirak Gram Panchayat Level Multipurpose Co-operative Societies Ltd. (hereafter referred to as the “petitioner society”) and the respondent No. 1 namely, Wabagai Keirak Gram Panchayat Level Multipurpose Co-operative Societies Ltd. (hereafter referred to as the “respondent society”) are the societies registered under the provisions of the said Act. Before the registration of the Petitioner society, the area of operation of the respondent society includes that of the petitioner society. 3.3 On 22-06-2011 the District Co-operative Officer, Thoubal, issued a show cause notice to the respondent society requiring its Board of Directors to give their replies to which the respondent society furnished its reply on 06-07-2011 with relevant documents which was received by the office of the Registrar, Co-operative Societies on 11-07-2011. On 11-11-2011 the District Co-operative Officer, Thoubal issued an order superseding the Board of Directors of the respondent society headed by Shri L. Ibohal Singh with immediate effect until further order. On 11-11-2011 the District Co-operative Officer, Thoubal issued an order superseding the Board of Directors of the respondent society headed by Shri L. Ibohal Singh with immediate effect until further order. In the meantime, on a joint application of Sri M. Mangoljao Singh and six others for registration of seven PACS, the Additional Registrar, Co-operative Societies, Manipur addressed a letter dated 04-11-2011 to the District Co-operative Officer, Thoubal to examine the feasibility for registration of 7 (seven) PACS after proper division of assets and liabilities from the adjoining and existing PACS as per the provisions of the Act and rules made there under and on receipt thereof, the District Co-operative Officer advised the Assistant Registrar, Co-operative Societies, Kakching to conduct a spot enquiry for registration of the GPL Societies vide its letter dated 09-11-2011. After the enquiry having been completed, the Assistant Registrar, Co-operative Societies, Kakching issued a notification dated 17-11-2011 under Section 9(1)(a) of the Act informing the public that the petitioner society had been registered and a Certificate of Registration dated 17-11-2011 was issued by it. On 22-11-2011, the District Co-operative Officer, Thoubal issued an order appointing as many as five persons as the members of the Board of Administrators including Saranthem Birmani Singh who was later elected as the President of the respondent society with the approval being communicated vide letter dated 05-12-2011 of the Assistant Registrar, Co-operative Societies, Kakching. 3.4 Being aggrieved by the said order dated 11-11-2011 passed by the District Co-operative Officer, Thoubal, the respondent society through Shri K. Sanatomba Kom filed a Co-operative Appeal Case No. 1 of 2012 before the Registrar, Co-operative Societies wherein Shri S. Birmani Singh, the President of the respondent society and some others were not arrayed as party and an interim order dated 28-03-2012 had been passed thereon. On an application being Co-operative Misc. Case No. 3 of 2012 filed by Shri S. Birmani Singh & ors., the Presiding Officer, Co-operative Tribunal vide its order dated 03-11-2012 disposed it of with the direction that the appeal be disposed of within a month there from after the applicants being impleaded as party and the interim order dated 28-03-2012 should not be given effect to. Case No. 3 of 2012 filed by Shri S. Birmani Singh & ors., the Presiding Officer, Co-operative Tribunal vide its order dated 03-11-2012 disposed it of with the direction that the appeal be disposed of within a month there from after the applicants being impleaded as party and the interim order dated 28-03-2012 should not be given effect to. During the pendency of the said appeal, the respondent society and others filed a Co-operative Revision Case No. 3 of 2013 before the Tribunal challenging the registration of the petitioner society which was disposed of vide impugned order dated 29-10-2013 of the Tribunal holding that the establishment of the petitioner society is in violation of the Section 17 and 18 of the Act and accordingly, the Tribunal has quashed and set aside the registration of the petitioner society. Being aggrieved by the impugned order, the petitioner society has challenged it by way of the present writ petition. 4. As stated herein above and since the main issue relates to the interpretation of the provisions of Section 149 and 152 of the Act, the same are reproduced herein below: “149. (1) The State Government shall constitute a Tribunal called the Manipur State Co-operative Tribunal, to exercise the functions conferred on the Tribunal by or under this Act. (2) The Presiding Officer, Revenue Tribunal appointed by the State Government as such shall be deemed to be the Manipur State Co-operative Tribunal for the purposes of this Act. (3) The Tribunal may call for and examine the record of any proceedings in which an appeal lies to it, for the purpose of satisfying itself as to the legality or propriety of any decision or other passed. If in any case, it appears to the Tribunal that any such decision or order should be modified, annulled or reversed, the Tribunal may pass such order thereon as it may deem just. (4) Where an appeal or application is made to the Tribunal under this Act it may, in order to prevent the ends of justice being defeated, make such interlocutory orders pending the decision of the appeal or application, as the case may be, may appear to it to be just and convenient, or such orders as may be necessary for the ends of justice, or to prevent the abuse of the process of the Tribunal. (5) An order passed in appeal, or in revision under sub-section (3), or in review under section 150 by the Tribunal shall be final and conclusive, and shall not be called in question in any Civil or Revenue Court. Explanation:- The Tribunal hearing an appeal under this Act shall exercise all the powers conferred upon an appellate Court by section 97 and Order XII in the First Schedule of the Code of Civil Procedure, 1908.” “152. (1) An Appeal against an order ore decision under section 4, 9, 11, 12, 13, 14, 17, 21, 29, 35, 78, and 105 shall lie, - (a) if made or sanctioned or approved by the Registrar, or the Additional or Joint Registrar on whom powers of the Registrar are conferred, to the State Government. (b) if made or sanctioned by any person other than the Registrar, or the Additional or Joint Registrar on whom the powers of the Registrar are conferred to the Registrar. (2) An Appeal against an order or decision under section 79, 85 and 88, and any order passed by the Registrar for paying compensation to a society, and any other order for which an appeal to the Tribunal has been provided under this Act shall lie to the Tribunal. (3) An appeal under sub-section (1) or (2) shall be filed within two months of the date of the communication of the order or decision. (4) Save as provided in this Act, no appeal shall lie against any order, decision or award passed in accordance with this Act, and every such order, decision or award shall be final, and where any appeal has been provided for, any order passed on appeal shall be final and no further appeal shall lie against it.” 5. It has been submitted by Shri A. Sashikumar Singh, Advocate, the learned counsel appearing for the petitioner that the impugned order is bad for the reason that the Tribunal had passed it without any jurisdiction. This contention has not been seriously controverted by Shri R.K. Nokulsana, Senior Advocate, the learned senior counsel appearing for the principal respondents. It has been submitted by Shri A. Sashikumar Singh, Advocate, the learned counsel appearing for the petitioner that the impugned order is bad for the reason that the Tribunal had passed it without any jurisdiction. This contention has not been seriously controverted by Shri R.K. Nokulsana, Senior Advocate, the learned senior counsel appearing for the principal respondents. Moreover, the power and jurisdiction of the Tribunal as envisaged under the provisions of the Section 149 of the Act has already been interpreted by this court vide its judgment and order dated 15-05-2013 in the case being W.P. (C) No. 108 of 2013, The Chairman, Manipur Milk Producers Co-operative Union Limited and Ors. Vs. The Ima Langnubi Dairy Co-operative Society and Ors. holding inter-alia that the power of revision of the Tribunal can be invoked against an order where an appeal would lie to the Tribunal. In the instant case, the respondent society is aggrieved by the registration of the petitioner society vide Registration Certificate dated 17-11-2011 issued by the Assistant Registrar, Co-operative Societies, Kakching. No appeal lies to the Tribunal against this order and therefore, the Tribunal has no jurisdiction at all to entertain the said revision petition. Section 152(1) (b) specifically provides that an appeal against order, if made or sanctioned by any person other than the Registrar or the Additional or the Joint Registrar on whom the powers are conferred, shall lie to the Registrar. Therefore, the respondent society, instead of filing a revision petition before the Tribunal, ought to have preferred an appeal before the Registrar. The relevant Para of the said judgment and order are given as under: “[6] For better appreciation of the rival contention, it may be appropriate to reproduce the provisions of section 149(3) of the Manipur Co-operative Societies Act, 1976: “149. (1) The State Government shall constitute a Tribunal called the Manipur State Cooperative Tribunal, to exercise the functions conferred on the Tribunal by or under this Act. (2) The Presiding Officer, Revenue Tribunal appointed by the State Government as such shall be deemed to be the Manipur State Cooperative Tribunal for the purposes of this Act. (3) The Tribunal may call for and examine the record of any proceedings in which an appeal lies to it, for the purpose of satisfying itself as to the legality or propriety of any decision or other passed. (3) The Tribunal may call for and examine the record of any proceedings in which an appeal lies to it, for the purpose of satisfying itself as to the legality or propriety of any decision or other passed. If in any case, it appears to the Tribunal that any such decision or order should be modified, annulled or reversed, the Tribunal may pass such order thereon as it may deem just. (4) Where an appeal or application is made to the Tribunal under this Act it may, in order to prevent the ends of justice being defeated, make such interlocutory orders pending the decision of the appeal or application, as the case may be, may appear to it to be just and convenient, or such orders as may be necessary for the ends of justice, or to prevent the abuse of the process of the Tribunal. (5) An order passed in appeal, or in revision under sub-section (3), or in review under section 150 by the Tribunal shall be final and conclusive, and shall not be called in question in any Civil or Revenue Court.” Perusal of the aforesaid provisions makes it clear that the Tribunal could call for and examine the record of any proceeding only where an appeal would lie to it. The words “lies to it” would refer to the Tribunal and not to any other authority. Therefore, if any appeal lies to the Tribunal against any order, it would naturally follow that revision would also lie to it. Secondly, the provisions of the sub-section (3) of section 149 have to be read together. Two parts of sub-section (3) of section 149 cannot be read in isolation as contended by the Respondent No. 1. This is clear from the words “If in any case” appearing in the beginning of the second sentence for such expression would indicate only such cases which are referred to in the first part of the subsection. This would be evident from the use of the words “any such decision or order” as found in the second sentence of the sub-section (3) which relates to such decision or orders against which an appeal lies. This would be evident from the use of the words “any such decision or order” as found in the second sentence of the sub-section (3) which relates to such decision or orders against which an appeal lies. Therefore, in the opinion of this court, both parts of the sub-section (3) have to be read together and not in isolation in which event, the power of revision of the Tribunal can be revoked against such order where an appeal would lie to the Tribunal. Also if no appeal would lie against any order to the Tribunal, the Tribunal will also be divested of any such power of revision under Section 149 (3). [7] The approval order dated 05-11-2012 passed by the Registrar of Co-operative Societies, Manipur was admittedly passed under section 78(8) of the Manipur Co-operative Societies Act, 1976, of which the learned counsel appearing for the respondent No. 1 does not dispute even though the provision of section 78(8) had not been specifically mentioned in the said approval order. If the aforesaid approval order of the Registrar of Co-operative Societies, Manipur was passed under section 78(8) of the Manipur Co-operative Societies Act, 1976, in that event, an appeal would lie to the State Government as provided under section 152(1) (a) of the Manipur Co-operative Societies Act, 1976 as mentioned above and not to the Tribunal.” 6. The only submission that the learned senior counsel appearing for the Principal respondents including the respondent society has emphasised, is that the petitioner society has not exhausted the alternative remedy provided under the provisions of the Section 150 of the Act for filing a review petition before the Tribunal and therefore, the instant writ petition is not maintainable and is accordingly liable to be dismissed. To substantiate his argument, the learned senior counsel has relied upon some of the decisions rendered by the Hon’ble Supreme Court. In the case of Tin Plate Co. of India Ltd. Vs. To substantiate his argument, the learned senior counsel has relied upon some of the decisions rendered by the Hon’ble Supreme Court. In the case of Tin Plate Co. of India Ltd. Vs. State of Bihar & Ors., reported in AIR 1999 SC 74 , the Hon’ble Supreme Court has held that it is no doubt true that when an alternative and equally efficacious remedy is open to a person, he should be required to pursue that remedy and not to invoke extraordinary jurisdiction of the High Court under Article 226 of the Constitution and when such remedy is available, it would be a sound exercise of discretion to refuse to entertain the writ petition under Article 226 of the Constitution. Similarly, in Sadhana Lodh Vs. National Insurance Co. Ltd & Anr. reported in AIR 2003 SC 1561, the Hon’ble Supreme Court has held that where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Reliance has also been placed in the case of Seth Chand Ratan Vs. Pandit Durga Prasad (D) by LRs. & Ors., reported in (2003) 5 SCC 399 wherein the Hon’ble Supreme Court has held that it has been settled by a long catena of decisions that when a right or liability is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking extraordinary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedy is no doubt a rule of policy, convenience and discretion and the court may be in exceptional case issue a discretionary writ of certiorari. Where there is complete lack of jurisdiction for the officer, authority or Tribunal to take action or there has been a contravention of fundamental rights or there has been a violation of rules of natural justice or where the Tribunal acted under a provision of law, which is ultra vires, then notwithstanding the existence of an alternative remedy, the High Court can exercise its jurisdiction to grant relief. Further reliance has been placed in the case of State of Madhya Pradesh Vs. Further reliance has been placed in the case of State of Madhya Pradesh Vs. Nerbudda Valley Refrigerated Products Company Private Limited & ors., reported (2010) 7 SCC 751 wherein the Hon’ble Supreme Court has referred to its earlier decision rendered in State of HP Vs. Gujarat Ambuja Cement Ltd, reported in (2005) 6 SCC 499 wherein it has been held that it is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing alternative remedy provided the High Court should ensure that he has made out a strong case or that there exists good grounds to invoke the extraordinary jurisdiction. There is no and can be no dispute at all about the law laid down by the Hon’ble Supreme Court in the said decisions cited above but the aforesaid decisions are not applicable to the facts of the present case except the decision rendered in Seth Chand Ratan Vs. Pandit Durga Prasad (D) by LRs & Ors. (supra) which is not, however, in favour of the Principal respondents. By the said decision, the Hon’ble Supreme Court has made it very clear that where there is lack of jurisdiction for the Tribunal to take action, the Hon’ble High Court can exercise its extraordinary jurisdiction to grant relief, notwithstanding the existence of an alternative remedy. The main contention raised by the learned counsel appearing for the petitioner is that no revision lies before the Tribunal against the order passed by the Assistant Registrar and the impugned judgment and order is passed without jurisdiction. It is no doubt true that under the provisions of Section 150(1) of the Act, the Tribunal may review its order on an application being moved by the Registrar or any party aggrieved by the Tribunal’s order. It is no doubt true that under the provisions of Section 150(1) of the Act, the Tribunal may review its order on an application being moved by the Registrar or any party aggrieved by the Tribunal’s order. But the conjoint reading of the provisions of Section 149 and 150 makes it very clear that the Tribunal has got the power to review its own order provided it has passed the order within its jurisdiction. The question of reviewing its order by the Tribunal will not arise, when the order under review itself is passed without jurisdiction. In the instant case, since the Tribunal has passed the impugned order without jurisdiction which is void ab initio, the petitioner society need not file any review petition before the Tribunal and the instant writ petition being maintainable, can be filed by the petitioner society without exhausting the alternative remedy. Having thus found that the impugned order is issued without jurisdiction, the same cannot be given effect to and is liable to be quashed and set aside. 7. For the reasons stated herein above, the instant writ petition is allowed and consequently, the impugned order dated 29-10-2013 passed by the Tribunal is quashed and set aside. There shall be no order as to costs.