Patna High Court
Sahebganj Motor Transport ... vs The Registrar, Co-Operative Societies ... on 2 September, 1971
Equivalent citations: AIR1973PAT77, AIR 1973 PATNA 77
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Untwalia, J.
1. Sahebganj Motor Transport Co-operative Society Ltd. is the sole petitioner in this writ application. There are 8 respondents out of whom respondent No. 1 is the Registrar, Co-operative Societies, Patna, respondent No. 4 is the Assistant Registrar. Co-operative So-cietits, Muzaffarpur Circle, respondents 5 to 7 are the 3 persons who, amongst others, had sponsored to form a co-operative society in the same name as that of the petitioner, respondents 2 & 3 are the Deputy Registrar. Co-operative Societies, 'Transport' Division, Muzaffarpur, and the Deputy Registrar, Co-operative Spcie-ties. Farming, Bihar. Patna, respectively end the 8th respondent is the State of Bihar. The petitioner has obtained a Rule from this Court under Articles 226 and 227 of the Constitution against the respondents to show cause why the order dated the 27th October, 1969, a copy of which is annexure 6 to the writ application, passed by respondent No. 1 be not called up and quashed. Mr. Mangal Prasad Mishra appeared in support of the rule, Standing counsel II appeared for the State but the main contest was by Mr. Kamlapati Singh learned counsel for respondents 5 to 7 who have also filed a counter-affidavit.
2. Sometime in April, 1968 some persons, of whom the main was Panna Lal Prasad, sponsored to form a Motor Transport-Co-operative Society. Their application was forwarded by Shri Akhileshwar Prasad Sinha, the Supervisor, to the Assistant Registrar, respondent No. 4. The petitioner's case is that the Assistant Registrar scrutinised the application on the 19th April, 1968 and pointed out certain defects in accordance with Rule 4 (2) of the Bihar and Orissa Co-operative Societies Rules, 1959 here-inafter called the Rules. Those defects were removed on the 26th of April, 1968. Along with that, the original, proposed name of society was also sought to be changed. The original, proposed name was Jaishankar Motor Transport Co-operative Society. It was sought to be changed to the name of Sahebganj Motor Transport Co-operative Society. Accepting the proposed change of the name, the Assistant Registrar, in exercise of his delegated powers under Section 11 of the Bihar and Orissa Co-operative Societies Act, 1935 hereinafter called the Act, granted a certificate of registration in the name of the petitioner on the 18th of June, 1968. A copy of this registration certificate is annexure 1 to the writ application. After this; registration was granted, an application was received by the Assistant Registrar, respondent No. 4, from respondents 5. 6. 7 and others through the Area Supervisor of Saheb-ganj. They in their application proposed to form a society in the name of Saheb-ganj Motor Transport Co-operative Society. The Assistant Registrar informed the sponsors of this new Society that a society in the name of Sahebganj Motor Transport Co-operative Society had already been registered. Thereafter the matter was enquired into by the Deputy Registrar. Co-operative Societies. Tirhut Division, Muzaffarpur, respondent No. 2, who submitted his report dated 31-8-1968 (annexure 4). Finally, respondent No. 4, by his order dated 21-11-68 refused to register the Society in exercise of his powers under Section 11 (2) of the Act and asked the sponsors -- respondents 5, 6, 7 and others -- to join the society which had already been registered. Thereupon the said respondents filed a revision on 13-12-1968 under Section 56 of the Act before the Registrar. In their revision application, they made a grievance of the illegal and wrong registration of Sahebganj Motor Transport Cooperative Society -- a Society sponsored by Panna Lal Prasad, as also a grievance that registration of their society in that name has wrongly been refused. A copy of the revision application is annexure 5 to the writ application. After hearing the parties concerned including Panna Lal Prasad and others the Registrar, by his impugned order, has held that the society recommended for registration by Shri Akhileshwar Prasad Sinha. Co-operative Supervisor, be registered in the name of Jaishankar Motor Transport Co-opera-tivt Society, and the society recommended by Shri Rajendra Prasad, Co-operative Supervisor, Sahebaganj be registered in the name of Sahebganj Motor Transport Co-operative Society.
3. In support of the rule, learned counsel for the petitioner urged 3 points--
(i) That no revision lay to the Registrar from the order dated 21-11-1968 (annexure 3).
(ii) That even if revision lay from the said order, the certificate dated 18-6-1968 granted to the petitioner could not be upset by the Registrar and the name of the registered society could not be changed by him in that revision.
(iii) That the order passed by the Registrar interfering with the orders of the Assistant Registrar is wrong in law.
4. The first point is not free from difficulty and has got to be decided as a case of first impression, as it is not covered by any authority. 'Registrar', according to Clause (i) of Section 2 of the Act, means "a person appointed to perform the duties of a Registrar of Co-operative Societies under this Act". The 6th section in the Act empowers the State Government to appoint a person to be Registrar of Co-operative Societies in the State and to appoint persons to assist such Registrar. Under Sub-section (2). "The State Government may by general or special order published in the Official Gazette, confer, ......... on any person appointed under Sub-section (1) to assist the Registrar, all or any of the powers of the Registrar under this Act except the powers under Section 26". It is not in dispute in this case that by notification dated the 16th of May, 1956 fan-nexure 2) in exercise of the said powers the Governor of Bihar was pleased to confer on Shri Hanuman Prasad, the then Assistant Registrar. Muzaffarpur, along with others, the powers of Registrar under Sections 8 (1) (b), 9, 10, 11 12, 14, 20, 25, 35, 36 and 39 of the Act. In exercise of that delegated power, under Sub-section (1) of Section 11 read with Rule 4 (3) of the Rules, the Assistant Registrar thought it fit to register the Society sponsored by Panna Lal Prasad as Sahebganj Motor Transport Co-operative Society. An appeal under Section 11 (3) lies to the State Government from an order of the Registrar refusing to register a Society and the period of limitation for filing such appeal is 2 months from the date of receipt of the order by at least one of the applicants. If therefore, a delegated authority or even the Registrar registers the Society, no appeal lies to the State Government under Sub-section (3) but if in exercise of the power under Sub-section (2) the officer concerned refuses be register a Society, he has to record his reasons for such refusal and then an 'appeal is provided to the State Government under Sub-section (3). Section 56 of the Act reads as follows--
"The Registrar may on application or of his own motion revise any order passed by a person exercising the powers of a Registrar or by a liquidator under Section 44".
Under Section 56 of the Act any order passed by a person exercising the powers of Registrar can be revised by the Registrar either on application or of his own motion. There is no period of limitation provided for exercise of such power or for the filing of such an application. Registering the society and granting of a certificate of registration under Section 11 (1) and Rule 4 (3) necessarily postulates an order registering the Society and directing the grant of such a certificate. Within the plain language of Section 56 of the Act, if the authority on whom powers have been conferred under Section 11 wrongly and illegally registers a Society, it is manifest that such an order would be revisable by the Registrar under Section 56 either on application or of his own motion. If the Registrar affirms the order of the delegated authority, the matter ends as no appeal would lie to the State Govt. then. But in case the Registrar, in exercise of the revisional powers, upsets the order of the delegated authority registering the Society and refuses to register it, in my opinion, an appeal to the State Government from such an order of the Registrar would be competent under Sub-section (3) of Section 11 of the Act. If that be so will it be in harmony and consistent with the reason to take the view that if the delegated authority refuses to register a Society under Sub-section (2) of Section 11 of the Act then the aggrieved party is obliged to straightway go to the State Government in an appeal under Sub-section (3) and cannot approach the Registrar to revise the order under Section 56 of the Act? The answer to my mind is that it will not be so. Section 56 does not make any distinction between the different types of orders which are passed by officers exercising the powers of Re-gistrar. There are other provisions in the Act where such a contingency arises. Power to direct amendment of a by-law of the registered Society under Section 26 of Society is only in the Registrar. In view of the bar contained in Sub-section (2) of Section 6 this power cannot be conferred on any other officer. The appeal provided in Sub-section (3) of Section 26 would, therefore, lie to the State Government only from the order of the Registrar and not from the order of any delegated authority. But then the power of the Registrar to levy surcharge on any person or officer under Sub-section (1) of Section 40 can be conferred on other officers. An appeal is provided from the order of the Registrar to the State Government in Sub-section (3). Here again, a similar question will arise that if a delegated authority illegally, wrongfully or wrongly refuses to levy the surcharge, no appeal lies but surely it will be in the fitness of things and within the scheme of the Act that the Registrar will have power to revise such an order under Section 56 of the Act. On a parity of reason, as I have said above, it will be equally so to confer a power of revision on the Registrar when the power of surcharge has been exercised by a delegated authority. Similar is the position under Section 41. It deals with supersession of Managing Committee. An appeal lies from the order of the Registrar to the State Government under Sub-section (5).
A winding up order can be made under Section 42 and an appeal lies from such an order under Sub-section (1) of Section 43 to the State Government. In all these cases, it would be apparent that if the power has been exercised by a delegated authority then appeal may be filed to the State Government direct or the Registrar either on application or of his own motion, may revise that order and finally if his order is of the kind which an appeal lies from the order of the Registrar to the State Government an appeal will lie to the State Government. I may, however, hasten to point out one thing in this connection. Under Section 60 of the Act the State Government may, by general or special order, delegate its power of hearing appeals under the provisions of the Act except the power of hearing appeals under Sections 26, 40 end 41, to any authority specified in such order. In other words, the power to hear appeal filed under Section 11 (3) of the Act in case the order of refusal under Sub-section (2) is of the delegated authority can be delegated to the Registrar. We were informed at the Bar that no such delegation has taken place under Section 60. If such a delegation would have taken place then the Registrar cannot have both the appellate power and the power of revision. In such a situation, as a matter of construction of the statute the position will be that the Registrar will have power of appeal only. But until that is done, I see no sufficient reason to rob the Registrar of his wide powers under Section 56 in cases where an appealable order has been made by the delegated authority. It seems to me quite reasonable to take the view that in such cases instead of flooding the State Government with appeals, the Registrar should first see whether the order made by the delegated authority is legal, just and proper irrespective of the question whether such order is appealable or not. Thereafter from the final order of the Registrar, if the order is an appealable one an appeal may be taken to the State Government. I am, therefore, of the view that revision filed by respondents 5 to 7 before the Registrar, respondent No. 1 was competent
5. In exercise of his powers tinder Section 56, the Registrar could in the revision filed before him, direct the Assistant Registrar to register the Society recommended by Shri Rajendra Prasad, Co-operative Supervisor, Sahebganj, as Sahebgani Motor Transport Co-operative Society Ltd. To that extent in the view which I have expressed above the order of revision was perfectly legal and within the authority of the Registrar. Learned counsel for the petitioner, however, submitted that in that revision the Registrar had no jurisdiction to interfere with the order dated 18-6-1968 granting registration to Pannalal Prasad and others in the name of Sahebgani Motor Transport Co-operative Society Ltd. I have no difficulty in rejecting this argument. The Registrar could revise that order dated 16-8-1968 of his own motion, and, as I have said above, there was no period of limitation for exercise of such a power. The impugned order is a composite one. It consists of two parts. One part is directing the Assistant Registrar to register the Society sponsored by respondents 5 to 7 as Sahebganj Motor Transport Co-operative Society Ltd. and the other part is a direction to the Assistant Registrar not to register the Society sponsored by Pannalal Prasad and others in the name of Sahebganj Motor Transport Co-operative Society Ltd. but to register it as Jaishankar Motor Transport Co-operative Society Ltd.. The only point on which this second part of the order could be attacked was that a fresh notice or opportunity ought to have been given to Pannalal and others if the Registrar proposed to exercise his revisional powers suo motu and to interfere with the order dated 18-6-1968 of the Assistant Registrar. But this grievance has not been made before us and even if made, it would have been found without substance as we have heard the matter on merits. We were satisfied that the interference with the order dated 18-6-1968 was correct as I am going to discuss presently. It was not a case of change of the name of the Society, as was argued on behalf of the petitioner, end therefore, the provisions of Section 26 of the Act and Rule 19 of the Rules were not attracted.
6. Briefly adverting to the merits of the impugned order of the Registrar, suffice it to say that after having examined that order with reference to some of the papers and facts which were placed before us, I have come to this conclusion that the order is right. Two or three salient features may be mentioned in this connection in my judgment also. Pannalal and others, it is admitted, in their original application sponsored the formation end registration of a Society in the name of Jaishankar Motor Transport Co-operative Society. Shri Akhileshwar Prasad was not the Supervisor of Sahebganj area. He had recommended the registration of the Society in the name of Jaishankar Motor Transport Co-operative Society, The defects pointed out by the Assistant Registrar on 19-4-1968 in his letter, a copy of which, although not annexed with the writ application, was shown to us by learned Counsel for the petitioner, did not relate to any defect in the name of the proposed Society. The defects were sought to be removed by reply letter of Shri Pannalal Prasad. A copy of this letter also was not annexed with the writ apalication but was produced before us by learned Counsel for the petitioner on our direction. From the last paragraph of this letter it was clear that the prayer was to register the Society in the name of Jaishankar Motor Transport Co-operative Society. But then subsequently in this paragraph it was added that the name may be changed from Jaishankar Society to Sahebganj Society. The learned Registrar has pointed out in his order that in his opinion this was an interpolation and (not) only in this paper, there were interpolations in other papers also. We did not on the facts and in the circumstances of this case think either desirable or within our powers to examine for ourselves these matters adversely found by the Registrar against Pannalal and others. But having appreciated the broad facts of this case, I have unhesitatingly come to the conclusion that the directions given by the Registrar in his composite order are valid, legal and justified.
7. For the reasons stated above, this writ application fails and is dismissed but in the circumstances there will be no order as to cost
8. Before I part with this case, I would like to make it clear as to what will be the effect of our order so far. The Society sponsored by Pannalal Prasad and others was registered as Sahebganj Motor Transport Co-operative Society Ltd., and the society sponsored by respondents 5 to 7 was not registered by the Assistant Registrar. In his composite order, the Registrar, as I have said above, directed the registration of the Society sponsored by Pannalal and others as Jaishankar Motor Transport Co-operative society and the Society sponsored by respondents 5 to 7 as Sahebganj Motor Transport Co-operative Society. When this writ application was admitted on 15th December 1969 the operation of the order of the Registrar was stayed till the disposal of this writ application. By the dismissal of this writ application today, the said order goes and now the Assistant Registrar, Muzaffarpur Circle, will be required to comply with the directions given by the Registrar in his order dated 27-10-1969. On compliance with the said direction by the Assistant Registrar the society of Pannalal and others will stand registered as Jaishankar Motor Transport Co-operative Society Ltd., but till then in the eye of law it will be deemed to continue as Sahebganj Motor Transport Co-operative Society Ltd. On the registration of the society of respondents 5 to 7 as Sahebgani Motor Transport Co-operative Society Ltd., that Society will function as such in that name.
Akbar Husain, J.
9. I agree.