Andhra HC (Pre-Telangana)
M. Chella Rao vs Deputy Registrar Of Co-Operative ... on 20 January, 2003
Equivalent citations: 2003(2)ALD538, 2003 A I H C 1734, (2003) 2 ANDHLD 538
ORDER P.S. Narayana, J.
1. Heard Sri M.S.N. Prasad, Counsel representing the petitioner and Ms. Jhansi, Counsel representing Sri B. Adinarayan Rao, Counsel for respondents.
2. The Transfer Civil Miscellaneous Petition is filed under Section 24 of the Code of Civil Procedure, hereinafter referred to as "Code" in short. The relief prayed for in the petition is to withdraw the Appeal, OA No. 67/2002 from the file of A.P. Cooperative Tribunal at Vijayawada and transfer the same to the A.P. Co-operative Tribunal at Hyderabad or to any other Tribunal having jurisdiction for disposal of the same and pass such other suitable orders.
3. The facts in nut-shell are as follows:
4. It is stated that the petitioner is working as Branch Manager of Krishan District Co-operative Central Bank, Chinnapuram Branch and the 1st respondent passed an order under Section 60(1) of the A.P. Co-operative Societies Act 1964, hereinafter in short referred to as "Act", dated 28-7-1999, vide Rc.No. 3248/94 G, against him and four others namely (1) Sri G.K. Prasad, Secretary, (2) Sri M. Shobhanadri, President, (3) Sri A, Krishna Rao, Supervisor, (4) Sri Ekambar Rao (RM) Retd. It is further stated that the above named four persons were referred to as defendants 1 to 4 and the petitioner was was shown as the 5th defendant in the surcharge order dated 28-7-1999 and in the said order, the 1st respondent fixed joint liability along with others to a tune of Rs. 1,07,880/-. It was also stated that while making the said order, no show-cause notice as contemplated under Section 60(1) of the Act was issued to the petitioner under Section 51 of the Act. It is further staled that an appeal was fifed by Sri Ekambar Rao, the 4th defendant, vide O.A. No. 221/ 99 before the A.P. Co-operative Tribunal under Section 76 of the Act and the Tribunal dismissed the same by orders dated 19-9-2001. While dismissing the said appeal, the liability was fixed as against the other defendants also including the petitioner, who were not parties to the said appeal. It is further stated that the petitioner filed another Appeal, OA No. 67/2002 before the same Tribunal which is pending disposal. It is further stated that the appeal preferred by the petitioner is an independent appeal and the petitioner is having good grounds to succeed in the appeal. But however, unfortunately, in view of the fact that the aforesaid Tribunal already had expressed its mind and had predetermined the matter, the petitioner is left with no other option, except to seek transfer of the matter pending on the file of the aforesaid Tribunal to any other competent Tribunal.
5. Sri M.S.N. Prasad, the learned Counsel had taken me through the operative portion of the order passed in the appeal and had contended that fixing the liability on the non-parties also will amount to predetermining the Issue and there is no point in further proceeding with the matter before the self-same Tribunal. The learned Counsel also had drawn my attention to Sections 75, 76 and 77 of the Act in general and to the language employed in Sub-section (3) of Section 75 of the Act in particular. The learned Counsel further elaborating his submissions had drawn my attention to Rule 49-A of the A.P. Cooperative Societies Rules, 1964 and also Rule 26 of the A.P. Co-operative Tribunal (Procedure) Rules, 1994. The learned Counsel would maintain that inasmuch as on the question of procedure relating to transfer the provisions of the Act and the Rules are silent, it can be definitely inferred that Section 24 of the Code alone is applicable in such a case.
6. Per contra, Ms. Jhansi, Counsel representing Sri B. Adinarayana Rao, had raised a preliminary objection that the remedy by way of Transfer Civil Miscellaneous Petition under Section 24 of the Code itself is a misconceived remedy since the Co-operative Tribunal is not a Court falling with the meaning of Section 24 of the Code. The learned Counsel also had laid emphasis on the language employed in Section 75 of the Act and further had drawn my attention to Section 121 and also Section 126 of the Act. The learned Counsel further contended that taking into consideration the Scheme and the object of the Act, at any stretch of imagination, it cannot be said that for seeking the relief of transfer of a proceeding from one Tribunal to another Tribunal under the Act, Section 24 of the Code can be invoked.
7. Heard both the Counsel and also perused the material available on record.
8. The contention advanced by both the Counsel in this matter relate to two parts. The first part is relating to the maintainability of the Transfer Civil Miscellaneous Petition under Section 24 of the Code and the second part is relating to the merits of the matter. If I am inclined to answer the first question in negative, then I need not proceed to deal with the contentions relating to the merits or demerits of the matter on the question of transfer of the proceeding.
9. It may be appropriate to have a look at the relevant provisions of both the Code and the Act and also the Rules for the purpose of appreciating the applicability of Section 24 of the Code to the present case. Section 24 of the Code deals with General power of transfer and withdrawal. The language employed in Section 24(1)(a) of the Code is to the effect:
"transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same."
Section 3 of the Code dealing with Subordination of Courts specifies as hereunder:
"For the purpose of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court."
Likewise, Section 4 of the Code deals with Savings and the said provision reads as follows:
"(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.
(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land."
It may not be out of context if I refer to Section 5 of the Code also which specifically specifies the Application of the Code to Revenue Courts. Section 75 of the Act dealing with Constitution of Co-operative Tribunals, reads as hereunder:
"(1) The Government may, for the purpose of this Act, by notification constitute as may Tribunals as may be necessary for such area or areas as may be specified in the notification.
(2) The Tribunal shall consist of a Chairman and not more than two other members to be appointed by the Government.
(3) The Chairman shall be a person who is or has been a judicial officer not below the rank of a District Judge and a member shall be a person, who holds or has held a post not below the rank of Additional Registrar of Co-operative Societies.
(4) The Government may, from time to time, likewise reconstitute any Tribunal constituted under Sub-section (1) or may abolish such Tribunal.
(5) The quorum to constitute a meeting of a Tribunal and the manner of taking decision thereat and the procedure and conduct of its business shall be such as may be prescribed.
(6) No Act or proceeding of any Tribunal shall be deemed to be invalid by reason only of the existence of any vacancy among its members or any defect, in the constitution or reconstitution thereof."
In Sub-section (3) of Section 75, the words employed are "......a judicial officer not below the rank of a District Judge and a Member shall be a person who holds or has held a post not below the rank of Additional Registrar of Co-operative Societies". Likewise, Section 76 of the Act deals with Appeal and Section 77 of the Act deals with Revision. Section 121 of the Act deals with bar of jurisdiction of Court. Likewise, Section 126 of the Act deals with Notice necessary in suits. No doubt, these provisions were referred just to convince the Court about the applicability of Section 24 of the Code and hence the other details need not be discussed further. Rule 49-A of the A.P. Co-operative Societies Rules 1964, introduced by G.O. Ms. No. 1808, F&A, dated 2-7-1965, deals with Procedure regarding disposal of appeals by Tribunal and reads as hereunder:
"The proceeding of the Tribunal shall be summary and shall be governed as far as practicable by the provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908)."
The words employed in the aforesaid Rule ".........as far as practicable.........." cannot be stretched too far as to engulf the applicability of Section 24 of the Code seeking transfer of a proceeding from one Tribunal to another Tribunal. Rule 26 of the A.P. Co-operative Tribunal (Procedure) Rules, 1994 dealing with Rules relating to Civil Rules of Practice to be followed, read as hereunder:
"Whenever these Rules as silent on question of, any procedure, the Tribunal shall follow the procedure stipulated under the Code of Civil Procedure, 1908 (Central Act V of 1908)".
On the strength of the language employed in the Rules referred to supra which are framed under the Rule making power, it cannot be said that in the case of a transfer of proceeding from one Co-operative Tribunal to another Co-operative Tribunal, the remedy of a party is to invoke Section 24 of the Code and hence in my considered opinion, the petitioner is not entitled to invoke this remedy under Section 24 of the Code for seeking transfer. Inasmuch as I am answering the first question in negative, I am not inclined to discuss the merits or demerits on the question whether the proceeding has to be transferred or not in the facts and circumstances of the case and hence this question is left open. In view of the observations made by me supra to the effect that Section 24 of the Code cannot be invoked for seeking transfer of the proceeding in question from one Tribunal to another Tribunal and in view of the request made by the Counsel for the petitioner, the petitioner is given liberty to covert the same into a proceeding under Article 227 of the Constitution of India in the facts and circumstances of the case. The Counsel for the petitioner is permitted ten days time to proceed further in the matter in accordance with law, as directed above.