Himachal Pradesh High Court
Reeta Devi & Anr vs Joint Secretary (Cooperation) To The ... on 6 August, 2021
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CMPMO No. 20 of 2021 Decided on: 06.08.2021 Reeta Devi & Anr. .......Petitioners.
Versus Joint Secretary (Cooperation) to the Government of Himachal Pradesh & ors. .....Respondents.
Coram Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 For the petitioners : Mr. Surinder Saklani, Advocate.
For the respondents : Ms. Ritta Goswami, Addl. AG with Ms. Seema Sharma, Dy. AG and Mr. Shrieyek Sharda, Senior Assistant Advocate General, for respondent No. 1.
Mr. Rajiv Rai, Advocate, for respondent No. 2.
Mr. J.S. Bagga, Advocate, for respondent No. 3.
(Through video conferencing) Jyotsna Rewal Dua, Judge A revision petition under Section 94(1) of the Himachal Pradesh Co-operative Societies Act, 1968 was filed by respondent No. 2 before the State Government-respondent No. 1.
The petitioners objected to its maintainability. Vide order dated 19.10.2020 respondent No. 1 held the revision petition to be 1 Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 31/01/2022 22:50:13 :::CIS 2maintainable and admitted it for hearing on merits. Aggrieved, the petitioners have invoked jurisdiction of this Court under .
Article 227 of the Constitution of India.
2(i) Arbitration proceedings were initiated against the petitioners under Section 72 of the H.P. Co-operative Societies Act, 1968 (hereinafter in short "Act"). The Arbitrator-District Inspector, Co-operative Societies, Bilaspur vide his award dated 2(ii) r to 7.12.2018 held the petitioners liable to pay the amount specified therein to the respondent No. 2-Society.
The petitioners preferred an appeal under Section 93 of the Act challenging the award dated 7.12.2018. The appeal was accepted by the Additional Registrar, Co-operative Societies vide order dated 23.10.2019. Impugned award dated 7.12.2018 was quashed and set aside. Further directions were issued to the Assistant Registrar, Co-operative Societies, Bilaspur for initiating surcharge proceedings under Section 69(1) of the Act against the erring officials for restoration of public money.
2(iii) Feeling aggrieved, respondent No. 2 assailed the order dated 23.10.2019 passed in CMPMO No. 336 of 2020.
Vide judgment dated 13.8.2020 a coordinate Bench of this Court held respondent No. 2's petition to be premature because of availability of remedy under Section 94 of the Act. While disposing of this petition, notice was not issued to the present petitioners.
::: Downloaded on - 31/01/2022 22:50:13 :::CIS 32(iv) Respondent No. 2 thereafter filed revision petition before the State under Section 94(1) of the Act. Upon issuance .
of notice, the petitioners appeared and contested the maintainability of the revision petition. Respondent No. 1 held the revision petition to be maintainable vide order dated 19.10.2020.
3. Assailing the order dated 19.10.2020, learned counsel for the petitioners contended that once an appeal is preferred under Section 93 of the Act, the State Government has no power to entertain the revision petition under Section 94(1) of the Act. In support of his submissions, learned counsel relied upon decisions rendered in LPA No. 2 of 2016, Nikku Ram versus State of H.P. & other decided on 22.6.2016 and LPA No. 67 of 2020 Veerta Devi and another versus State of H.P. & others decided on 28.12.2020. Learned counsel for respondent No. 2 supported the impugned order and the maintainability of the revision petition under Section 94(1) of the Act. Learned counsel contended that the judgment passed by the Division Benches relied upon by the learned counsel for the petitioners were per incuriam as earlier judgment passed in CWP 64 of 1994 decided on 24.3.1995 has not been noticed there.
4(i) The question for consideration is whether revision petition under Section 94(1) of the Act filed by respondent No. 2 is maintainable when the appeal had been preferred and ::: Downloaded on - 31/01/2022 22:50:13 :::CIS 4 adjudicated under Section 93 of the Act. Sections 93 and 94 of the Act are as under:
.
"93. Appeal :-- An appeal shall lie under this section against--
(a) an order of the Registrar made under sub-section (4) of section 8 refusing to register a society;
(b) an order of the Registrar made under sub-section (4) of section 11 refusing to register an amendment of the bye-laws of a society;
(c) a decision of a society refusing to admit any person as a member of the society who is otherwise duly qualified for membership under the bye-laws of the society;
(d) a decision of a society expelling any of its members;
(e) an order of the Registrar removing the committee of a Co-operative society under section 37;
(f) an order of the Registrar under section 68 apportioning the cost of the enquiry held under section 67 or an inspection made under section 66;
(g) any order of surcharge under section 69;
(h) any decision or award made under section 73;
(i) an order made by the Registrar under section 78 directing the winding up of Co-operative society;
(j) any order made by the liquidator of a society in exercise of the powers conferred on him by section 80;
(k) any order made under section 74;
(l) an order of the Registrar made under sub-section (2) of section 11-A; or
(m) an order of the Registrar made under sub-section (1) of section 14-A. (2) An appeal against any decision or order under sub-
section (1) shall be made within sixty days from the date of decision or order,--
(a) If the decision or order was made by the Assistant Registrar or the Deputy Registrar, to the Registrar or such Additional Registrar or Joint Registrar as may be authorized by him in this behalf; or
(b) if the decision or order was made by the Joint Registrar, the Additional Registrar or the Registrar, to the Government ; or
(c) if the decision or order was made by any other person, to the Registrar or such Additional Registrar, Joint Registrar, Deputy Registrar or Assistant Registrar as may be authorized by him in this behalf: and (3) No appeal shall lie under this section from any decision or order made by any authority in appeal.::: Downloaded on - 31/01/2022 22:50:13 :::CIS 5
94. Review and Revision :-- (1) The State Government except in a case in which an appeal is preferred under .
section 93 may call for and examine the record of any inquiry or inspection held or made under this Act or any proceedings of the Registrar or of any person subordinate to him or acting on his authority, and may pass thereon such orders as it thinks fit. (2) The Registrar may at any time,--
(a) review any order passed by himself; or
(b) call for and examine the record of any inquiry or inspection held or made under this Act of the proceedings of any person subordinate to him or acting on his authority and if it appears to him that any decision, order or award or any proceedings so called or should for any reason be modified, annulled or reversed, may pass such r order thereon as he thinks fit;
Provided that, before any order is made under sub- section (1) and (2), the State Government or the Registrar as the case may be shall afford to any person likely to be affected adversely by such orders an opportunity of being heard.
Provided further that every application under sub-section (1) and (2), to the State Government or the Registrar, as the case may be shall be made within ninety days from the date of the communication of the order sought to be reviewed or revised."
4(ii)(a) In CWP No. 9391 of 2012, titled Daulat Ram versus State of H.P. & Others , decided on 20.11.2013 by a Division Bench of this Court, Section 94 of the Act was interpreted as under:
"2. We are of the considered view that the authority below erred in correctly and completely construing and interpreting the provisions of the Statute. Power vested ::: Downloaded on - 31/01/2022 22:50:13 :::CIS 6 with the State Government, under Section 94 of the Act, is distinct and separate from the revisional powers .
vested with the Additional Registrar, Cooperative Societies. We find that amplitude of Section 94 is wide enough and would take in its sweep, powers of calling or entertaining petitions other than the one in which appeal is preferred under Section 93 of the Act. In exercise of its revisional jurisdiction, the authority can call for and examine any record of inquiry or inspection under the Act or the proceedings of any person subordinate to him, acting on his authority. The revisional authority can also call for proceedings of the "Registrar or any person subordinate to him". Such revisional power is to be exercised if the order is perverse, erroneous or illegal and can modify, annul or reverse any order passed by the Registrar. Revision petition against an order passed by the Assistant Registrar Cooperative Societies, would lie under Section 94 of the Act."
4(ii)(b) In Nikku Ram versus State of H.P. & others , LPA No. 2/1016, decided on 22.6.2016 reported in ILR 2016 Part-II, 2122 , a Division Bench of this Court held as under:
"21. Bare perusal of the provisions, referred hereinabove, clearly suggest that State Government has no power to entertain an appeal especially where appeal under Section 93 has already been filed by the party concerned. Section 94, as referred hereinabove, only provides for the power of revision to the State Government that too only in those matters which are not covered by Section 93 of the 1968 Act. Hence order passed by respondent No.1 dated 20.4.2010 appears to be legally correct and cannot be interfered with."::: Downloaded on - 31/01/2022 22:50:13 :::CIS 7
4(ii)(c) In Tiara Co-operative Agricultural Service Society Ltd. versus State of Himachal Pradesh and others, .
reported in 2016 (VI) Part-II, 1644 while deliberating the alternate remedies available to the writ petitioner following was observed by the Division Bench regarding Sections 93 and 94 of the Act:
"8.
A bare perusal of the aforesaid provisions clearly shows that this Section gives revisional powers to the State Government in a case where no appeal under section 93 of the Act has been preferred and similar powers have been conferred upon the Registrar to be exercised either suo motu or on an application of a party, provided the same is preferred within 90 days from the date of communication of the order sought to be reviewed or revised and further that the person(s) likely to be effected adversely by such order is afforded an opportunity of being heard. It is immaterial whether the revisional power is exercised, on action initiated at the instance of the interested party or suo motu, the order passed would be within jurisdiction.
9. This Section specifically deals with the power of the State Government/Registrar to call for and to examine the record of any inquiry or inspection held or made under this Act or any proceedings. The State Government can examine any proceedings of the Registrar or any person subordinate to him or acting on his authority, whereas the Registrar is empowered to call for and examine the proceedings of any person subordinate to him or acting on his authority and if it appears to him that any decision, order or award or any proceedings so called or should for any reason be modified, annulled or reversed, may pass such order thereon as he thinks fit.::: Downloaded on - 31/01/2022 22:50:13 :::CIS 8
10. However, it needs to be clarified that if revisional application is not maintainable, fortiori suo motu .
powers cannot also be exercised.
13. In view of what has been observed above, we can safely come to the following conclusions:
i) The State Government or the Registrar under Section 94 of the Act can exercise its suo motu revisonal jurisdiction or on an application made by an aggrieved party;
ii) the remedy of revision before the State Government is barred only in the cases where an appeal has already been preferred under section 93 of the Act;
iii) the remedy of revision either suo motu or otherwise can be exercised only against the decision or order passed by the authority under the Act or proceedings arising out of the Act or the Rules framed thereunder. However, this remedy cannot be invoked against an order passed by the society;
iv) the suo motu power of revision cannot be exercised by the State Government or the Registrar, as the case may be, if at the instance of an aggrieved party, the revision is not maintainable, fortiori suo motu power cannot also be exercised."
4(ii)(d) The question of maintainability of revision petition under Section 94 of the Act after filing of appeal under Section 93 of the Act, also came up for consideration in LPA No. 67 of 2020, titled Veerta Devi and another versus State of H.P. & others , decided on 28.12.2020. The precise question framed therein was :-
The moot question in this appeal is - whether a revision petition under Section 94 of the Himachal Pradesh Co-operative Societies Act, 1968 (for short 'Act') is maintainable even in case where an appeal has ::: Downloaded on - 31/01/2022 22:50:13 :::CIS 9 been preferred by the aggrieved party under Section 93 of the Act?
.
Learned Single Judge in the writ petition had held that a revision would be maintainable under Section 94(1) of the Act even when an appeal under Section 93 of the Act was preferred by the aggrieved party. The observations made by the learned Single Judge were as under:
"In my considered view, the contention of learned Senior Counsel for the petitioners cannot be accepted.
Section 94(1) of the 1968 Act is to the effect that the State Government, except in a case in which Act is to the effect that the State Government, except in a case in which an appeal is preferred under Section 93, may call for and examine the record of any inquiry or inspection held or made under this Act or any proceedings of the Registrar or of any person subordinate to him or action on his authority and may pass thereon such orders as it thinks fit. Thus, what Section 94 envisages is that in a case where an appeal is preferred under Section 93 of the 1968 Act, State Government cannot simultaneously exercise its power of revision so conferred under Section 94 of the 1968 Act. However, the language of Section 94 cannot be construed that an order which stands passed by the Appellate Authority in an appeal preferred under Section 93 of the 1968 Act is also not revisable. Had that been the intent of the Legislature, then the language of Section 93 would have been explicit that the State Government cannot exercise the power of revision in a case in which an order stands passed in an appeal preferred under Section 93 of the 1968 Act. Further, in my considered view, once an appeal is preferred under Section 93 of the 1968 Act and the same culminates into an order ::: Downloaded on - 31/01/2022 22:50:13 :::CIS 10 passed by the Registrar, then the State Government has the power of revision, because then the .
adjudication of the appeal becomes 'any proceedings of the Registrar' and these proceedings are revisable as per statutory provisions of Section 94(1) of the 1968 Act."
The Division Bench held the above observations of learned Single Judge to be 'in teeth' of the two judgments rendered by the Division Benches in the Tiara Co-operative Agricultural Service Society Ltd. vs. State of Himachal Pradesh & others and Nikku Ram's case. The Division Bench also overruled a judgment passed by learned Single Bench in another CWP No. 4294 of 2013, titled Solan District Truck Operators Transport Cooperative Society Ltd. vs. Harjinder Singh and others decided on 21.11.2014. The Division Bench held that pronouncement in Daulat Ram's case supra was not correctly followed in Solan District Truck Operator's case. Following was observed in Solan District Truck Operator's case:
"6. In view of the aforesaid authoritative pronouncement of this Court in Daulat Ram's case (supra) regarding scope of Section 94 of the Act, which is otherwise binding upon this Court, the impugned order dated 14.02.2013 cannot be sustained. The learned Division Bench has already held that amplitude of Section 94 is wide enough and would take in its sweep, powers of calling or entertaining petitions other than the one in which appeal is preferred under Section 93 of the Act. The revisional Court in exercise of its jurisdiction can call for and examine any record of inquiry or inspection under the Act or the proceedings ::: Downloaded on - 31/01/2022 22:50:13 :::CIS 11 of any person subordinate to him, acting on his authority. The revisional authority can also call for the .
proceedings of not only the Registrar but any other person or authority subordinate to him."
In view of the observations and findings recorded in the judgment, the Division Bench in Veerta Devi's case set aside the order passed by learned writ court.
5. The position which emerges is that amplitude of the revision under Section 94(1) of the Act covers the petitions other than the ones in which appeal is preferred under Section 93 of the Act. There is no provision for second appeal under Section 93 of the Act. In the case in hand the appeal had been preferred under Section 93 of the Act. Revisional remedy under Section 94(1) of the Act, therefore would not be available. Respondent No. 2 could have exercised its remedy under Section 94(2) of the Act pursuant to the liberty granted to it in CMPMO No. 336 of 2020. Section 94 is in two parts. Section 94(1) of the Act pertains to revisional powers of the State and Section 94(2) pertains to review and revisional powers of the Registrar, Cooperatives Societies. Section 94(2) further gives power of review as well as power of revision to the Registrar. The Registrar can, not only review any order passed by him but is also empowered to call for and examine the proceedings of any person subordinate to him or acting on his authority and if it appears to him that any decision, order or award or any ::: Downloaded on - 31/01/2022 22:50:13 :::CIS 12 proceedings so called or should for any reason be modified, annulled or reversed may pass such order thereon as he thinks .
fit. The impugned order passed by respondent No. 1, however, holds that Registrar has no power to review and revise the order passed by his delegate Additional Registrar. Respondent No. 2 has not questioned this part of the order, therefore, no further deliberation on this aspect are being made.
The law as interpreted in Daulat Ram, Nikku Ram, The Tiara Co-operative Agriculture Service Society Limited, Veerta Devi and its effect on the maintainability of the revision petition under Section 94(1) of the Act has not been disputed by learned counsel for respondent No. 2. Learned Counsel has also not disputed that in the face of these judgments passed by the learned Division Benches, the revision petition filed by respondent No. 2 under Section 94(1) of the Act cannot be held to be maintainable. However, his argument is that all these judgments are per incuriam as an earlier judgment rendered in CWP No. 64 of 1993, titled The Radiant Wood Workers Production-cum-Sale Cooperative Industrial Society Ltd.
Kullu versus The Kangra Central Co-operative Bank Ltd.
Dharamsala & ors., decided on 24.03.1995 (reported in ILR Vol.
2 1995 page 1106) was not noticed by the latter Division Benches. Learned Counsel referred to following extract from the judgment:
::: Downloaded on - 31/01/2022 22:50:13 :::CIS 13"Admittedly, there is no specific bar to file revision after the decision of appeal either in Section 93 or Section 94 .
or in any other provision of the Act. The words of Section 94 referred to above, only provide for exception that if against the order appeal is preferred, the same matter will not be subjected to revision or review during the pendency of the appeal and these do not suggest that after the appeal is decided, the order of the Appellate Authority, which is part of the proceedings of the Registrar or any person subordinate to him or acting on his authority, is not revisable by the State Government or the Registrar, as the case may be. The purpose of providing this exception is to avoid decision by the Revisional Authority when the Appellate Authority is already seized of the matter but after the decision of the appeal the matter will be open for scrutiny of Revisional Authority, which has been given powers to examine the record and pass appropriate orders as it thinks fit. Any other interpretation of Section 94 of the Act would defeat the very purpose of this Section as envisaged by the Legislature. In a Division Bench judgment or this Court in V.D Kalia v. The Bilaspur District Co-operative Marketing and Consumer Federation Limited, Bilaspur and Ors. 1991 (2) Sim.L.C. 285 the learned Judges have upheld the suo motu powers of revision of the Government to set aside the order of the Registrar which was passed in exercise of revisional jurisdiction holding that it was illegal and without affording an opportunity to the employee whose dismissal was sustained. In view of the ratio of the judgment in this case we hold that after the decision of appeal under Section 93 of the Act revision lies before the State Government or the Registrar, Co-operative Societies, as the case may be."
From the reading of the aforesaid judgment, it appears that the point was conceded in the judgment that there ::: Downloaded on - 31/01/2022 22:50:13 :::CIS 14 is no bar for filing of revision under Section 94 of the Act after the decision in appeal under Section 93 of the Act. The reasoning .
given in this judgment has already been taken note of in Veerta Devi's case supra where the Division Bench held the same reasoning given by learned Single Judge to be 'in teeth' of the ratio of many judgments on the issue rendered by different learned Division Benches. In the light of the judgments passed by Division Benches of this Court in Daulat Ram, Nikku Ram and Tiara Co-operative Agriculture Service Society Ltd. and Veerta Devi'cases this Court is unable to hold that these judgments are per incuriam. As already observed, even the learned counsel for respondent No. 2 has not disputed that the revision petition filed by respondent No. 2 would not be maintainable under Section 94(1) of the Act in view of the ratio and reasoning given in the above four judgments rendered by the learned Division Benches.
The remedy under Section 94(2) of the Act was not availed by the petitioner. CMPMO No. 336 of 2020 was disposed of by granting liberty to respondent No. 2 to avail remedy under Section 94 of the Act and not specifically under Section 94(1) of the Act. In the light of above discussion, the revision petition filed by respondent No. 2 under Section 94(1) of the Act is held to be not maintainable. Respondent No. 2 has not challenged the impugned order wherein respondent No. 1 without there being any occasion for it, has held that Registrar cannot exercise ::: Downloaded on - 31/01/2022 22:50:13 :::CIS 15 powers of review and revision under Section 94(2) of the Act in the facts of the case.
.
No other point was urged.
This petition is accordingly allowed and disposed of.
It shall, however, be open for respondent No. 2 to avail appropriate remedies available to it in accordance with law.
Pending application(s), if any, shall also disposed of.
r to Jyotsna Rewal Dua
Judge
06 th August, 2021,
(vs)
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