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PETITIONER: JAI MAHAVIR CO-OPERATIVE HOUSING SOCIETY LTD.

       Vs.

RESPONDENT: PANCHAL KESHAVLAL NARBHERAM & ORS.

DATE OF JUDGMENT10/04/1987

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) KHALID, V. (J)

CITATION:  1987 AIR 1513            1987 SCR  (2) 894  1987 SCC  (3) 425        JT 1987 (2)   576  1987 SCALE  (1)777

ACT:     Gujarat  Co-operative Societies Act,  1961--Sections  96 and  150-Order passed by the Registrar--Whether  subject  to revision by Tribunal--Whether Registrar competent to  review his earlier decision.

HEADNOTE:     The  first  respondent  instituted  a  proceeding  under Section  96(1)  of the Gujarat  Cooperative  Societies  Act, 1961,  for setting aside the Resolution, expelling him  from the membership of the appellant Society. The said resolution had  been duly approved by the Registrar of Societies  under Section  36  of  the Act. The dispute was  referred  by  the Registrar under Section 98(1) of the Act to his nominee  for a decision, who dismissed the claim.     The Tribunal allowed the appeal of first respondent  and remanded  the matter to the Registrar’s nominee for a  fresh decision. During the trial, upon an application made by  the appellant  Society under sub-section (2) of Section 96  that the  dispute  did not survive as the expulsion  had  already been decided in the collateral proceedings and the Registrar had  accorded his approval under Section 36 of the Act,  the District  Registrar held that the first respondent was  pre- cluded  from  contending that the  impugned  Resolution  was illegal  since he had not preferred any appeal  against  the approval by the Registrar, that the doctrine of res judicata was attracted and, therefore, there was no dispute in exist- ence between the parties.     This  order was taken up in revision under  Section  150 sub-clause  (9) of the Act before the Tribunal,  which  held that  the District Registrar had no jurisdiction to  re-open the  question  as to whether or not the matter  referred  by first  respondent was a dispute within the meaning  of  sub- section  (1)  of  Section 96 at the  subsequent  stage,  and having already decided that the matter constituted a dispute under  Section 96(1) at an earlier stage, the  powers  under sub-section (2) of Section 96 were exhausted and he was  not competent to review his earlier decision.     In  appeal,  the High Court held that the  Tribunal  was right  in holding that the Registrar had no jurisdiction  to revise or review his

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895 earlier  decision that the dispute raised by the  first  re- spondent fell within the ambit of the description of dispute within  the  meaning of sub-section (1) of Section  96,  and that  it had revisional jurisdiction; and also granted  spe- cial leave to appeal.     In appeal before this Court, it was contended on  behalf of  the  appellant that when a dispute was referred  to  the Registrar,  and he ultimately gave a decision on  merits  it was  no doubt appealable but when the Registrar  entertained the  dispute and sent it to his nominee, that was  an  order against which a revision lay to the Tribunal. Dismissing.the appeal, this Court,     HELD: 1. Clause (9) of Section 150 confers  jurisdiction on  the Tribunal to call for and examine the record  of  any proceeding.  The word ’proceeding’ here is qualified by  the phrase, in which appeal lies to it- After final disposal  of these proceedings i.e. decision of the dispute by the Regis- trar  or by his nominee, an appeal will lie to the  Tribunal and, therefore, the High Court was right in holding that the Tribunal had jurisdiction to call for and examine the record of such proceedings. [899D-E]     The  phrase ’any proceedings in which an appeal lies  to it’ in clause (9) of Section 150 makes it clear that if  the proceedings  where  the final order is appealable,  then  it could  not be said that these are the proceedings  where  an appeal lies to the Tribunal, and it is in these  proceedings that the jurisdiction has been conferred on the Tribunal  to call for the record and examine the matter. [899E-G]     2.  When  the respondent submitted his  dispute  to  the Registrar  and  the Registrar, after examining  the  matter, came to the conclusion that it was a dispute which could  be entertained  within the scope of Section 96 and,  therefore, referred  it to his nominee for decision, there is no  doubt that  the Registrar exercised jurisdiction under Section  96 and,  therefore, the High Court was right in coming  to  the conclusion  that once the Registrar took this  decision,  he had no power to review his order. [900A-C]     Krishnarao Bakaramji Hadge v. The State of  Maharashtra, [1969] B.L.R., 150 referred to.

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1583  (N) of 1973. 896     From the Judgment and Order dated 6.4.1973 of the  Guja- rat High Court in Special Civil Appeal No. 494 of 1971.     Raja Ram Aggarwal, Mr. M.V. Goswami and M.M.  Kashatriya for the Appellant. Vimal Dave and Mrs. H. Wahi for the Respondents. The Judgment of the Court was delivered by     OZA,  J.  This appeal is by certificate granted  by  the High Court of Gujarat under Art. 133 of the Constitution  of India by its order dated 6.4.73. The High Court by its order dated  6.4.73 dismissed the petition filed by the  appellant questioning the correctness of the order of the Gujarat  Co- operative Tribunal.     The facts necessary for disposal of this appeal are that appellant is a co-operative housing society registered  with the  Registrar  of Cooperative Societies Gujarat  under  the provisions  of the Act. It is alleged that this Society  was formed on 2nd May 1961 with the object of providing  housing facilities to its members. Respondent No.1 Panchal Keshavlal

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Narbheram was a founder member of this Society alongwith  11 others.  It is alleged that the conduct of  respondent  No.1 was  found to be detrimental to the interest of the  Society and its working and the Society therefore invoked the provi- sions  of Section 36 of the Act, passed a  resolution  dated 19.6.65 to expel respondent No.1 from the membership of  the Society.  A further opportunity to show cause was  given  to the respondent and on November 28, 1965 the appellant socie- ty  passed a resolution expelling respondent No.1  from  the membership of the Society.     This resolution of the Society was duly approved by  the Registrar of Societies as required under Sec. 36 of the said Act on 13.4.66.     On  17.2.66 respondent No.1 instituted another  proceed- ings  under  Sec. 96(1) with the Registrar  of  Co-operative Societies seeking relief of setting aside of the  resolution passed  by the Society against respondent No. 1. The  Regis- trar  entertaining  the dispute and exercising  powers  con- ferred under Sec. 98(1) referred the dispute for decision to his  nominee  and out of these  proceedings  ultimately  the present appeal arises. On July 16, 1966 the Registrar’s nominee dismissed  respond- ent 897 No.  1’s  claim by his order dated 16.7.66.  Thereafter  re- spondent  No.1 carried the matter to the Tribunal by way  of an appeal i.e. Appeal No. 119 of 1966.     That on August 25, 1967 the Tribunal allowed the  appeal of the respondent and remanded the matter to the Registrar’s nominee for a fresh decision in accordance with law.     After  remand the parties proceeded with the  trial  and adduced  oral  evidence before the Registrar’s  nominee  but during  the trial on 16.2.70 the appellant-society  made  an application  under sub-sec. (2) of sec. 96 to  the  District Registrar  that  the question relating to the  expulsion  of respondent No. 1 had already been decided in the sense  that in the collateral proceedings the Registrar had recorded his approval under Sec. 36 of the Act to the action taken by the Society  and therefore the dispute did not survive. On  this application  the  District Registrar heard the  parties  and came  to the conclusion that respondent No. 1 was  precluded from  contending that the impugned resolution expelling  him from  the membership of the society was illegal inasmuch  as he had not preferred any appeal against the decision of  the Registrar according his approval to the action taken by  the Society under sec. 36.     The District Registrar was of the opinion that  doctrine of  resjudicata  was attracted and therefore  there  was  no dispute in existence between the parties. This order  passed by  the District Registrar on 19.6.70 was taken up in  revi- sion under Sec. 150 sub-clause 9 of the Act to the Tribunal. The Tribunal came to the conclusion that the District Regis- trar  had  no  jurisdiction to re-open the  question  as  to whether or not the matter referred by respondent No. 1 was a dispute  within  the meaning of sub-sec. (1) of Sec.  96  at this  subsequent stage. The view taken was that  having  al- ready  decided that the matter constituted a  dispute  under Sec.  96(1) at an early stage before he made a reference  to the Registrar’s nominee in exercise of powers under Sec. 97. The powers under sub-sec. (2) of Sec. 96 were exhausted  and it was not competent for him to review his earlier decision. Accordingly  the Tribunal by its order dated 6.2.71  allowed the  revision  petition, set aside the order passed  by  the District Registrar on June 25, 1970 and directed the  Regis- trar’s  nominee to proceed with the decision of  the  matter

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expeditiously having regard to the fact that the dispute  is an  old one having its origin in a resolution passed by  the appellant-society on November 28, 1965. 898     The appellant-society feeling aggrieved by the aforesaid decision  invoked the jurisdiction of the High  Court  under Articles  226 and 227 of the Constitution of India. In  this petition  the appellant raised mainly two  contentions:  (i) that the Tribunal was in error in holding that Registrar was not competent to review his earlier decision that the matter referred  to by the respondent No.1 was a  ’dispute’  within the  meaning of sub-section (1) of Sec. 96 of the Act;  (ii) that the Tribunal had no revisional jurisdiction against  an order passed under Sec. 96(2) of the Act.     On the first question the High Court came to the conclu- sion  that the Tribunal was right in holding that  Registrar had no jurisdiction to revise or review his earlier decision wherein  the Registrar came to the conclusion that the  dis- pute raised by respondent No. 1 fell within the ambit of the description  of dispute (within the meaning of sub-sec.  (1) of Sec. 96). On the second question the High Court took  the view that the Tribunal had revisional jurisdiction.     The  High  Court  considered the question  of  leave  to appeal to this Court and granted leave and framed  following question for decision:               "In an order passed by the Registrar in  exer-               cise  of the powers under sub-section  (2)  of               Sec. 96 of Gujarat Cooperative Societies  Act,               1961  subject to revision by the  Tribunal  in               exercise of the powers under Section 150(9) of               the Act?" In  pursuance to the certificate granted by the  High  Court the present appeal has been filed by the appellant.     Learned  counsel appearing for the  appellant  contended that  although when a dispute is referred to  the  Registrar and he ultimately gives decision on merits that is no  doubt appealable but when the Registrar entertains the dispute and sends it to his nominee that is not an order against which a revision  can  lie to the tribunal. Learned  counsel  placed reliance  on the decision in Krishnarao Bakaramji  Hadge  v. The  State of Maharashtra, [1969] B.L.R. 150  and  contended that the Tribunal had no revisional jurisdiction.     The High Court in the impugned judgment after  consider- ing  this decision and the provisions contained in  Sec.  97 came  to the conclusion that when a dispute is  referred  to the Registrar under sec. 96 and  899 the  Registrar  entertains  the dispute under  Sec.  96  and ultimately  finally disposes it of against the  decision  on the  merits there is an appeal to the Tribunal according  to Sec. 97 which is similar to Sec. 101 of the present  Gujarat Co-operative  Societies  Act, 1961 and in view of  this  the learned Judges of the High Court came to the conclusion that under  clause  9  of Sec. 150 the  Tribunal  has  revisional jurisdiction in a matter an appeal lies to it. Clause (9) of Sec. 150 reads:               "(9) The Tribunal may call for and examine the               record  of any proceeding in which  an  appeal               lies  to  it, for the  purpose  of  satisfying               itself as to the legality or propriety of  any               decision  or order 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."

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This  confers jurisdiction on the Tribunal to call  for  and examine the record of any proceeding. The word  ’proceeding’ here  is qualified by the phrase in which an appeal lies  to it.  It is not disputed that after final disposal  of  these proceedings i.e. decision of the dispute by the Registrar or by his nominee an appeal will lie to the Tribunal and there- fore  in  the impugned judgment the Division  Bench  of  the Gujarat  High  Court  took the view that  the  Tribunal  has jurisdiction  to  call for and examine the  record  of  such proceedings. The judgment of the Bombay High Court on  which reliance  is placed refers to Sec. 149 sub-clause 9  of  the Maharashtra Co-operative Societies Act, 1960. It is no doubt true  that  the phrase ’any proceedings in which  an  appeal lies  to it’ is identical in the two statutes i.e. Sec.  150 clause 9 of the Gujarat Co-operative Societies Act and  sub- clause 9 of Sec. 149 of the Maharashtra Co-operative  Socie- ties,  Act, 1960. This language makes it clear that  if  the proceedings  where  the final order is  appealable  then  it could  not be said that these are the proceedings  where  an appeal  lies to the Tribunal and it is in these  proceedings that the jurisdiction has been conferred on the Tribunal  to call for the record and examine the matter. In this view  of the  matter, in our opinion, the view taken by the  Division Bench of the Gujarat High Court in the present case  appears to be correct and the High Court was fight in coming to  the conclusion  that the Tribunal had jurisdiction to  call  for and  examine the record i.e. exercise  revisional  jurisdic- tion.  Although this was the only question which was  stated in the certificate issued by the High Court, learned counsel also  attempted to contend that the view taken by  the  High Court  on the first question as to whether the Registrar  is not  competent  to review his earlier decision  but  in  our opinion even on 900 that  ground the view taken by the High Court appears to  be correct.     When the respondent submitted his dispute to the  Regis- trar  and the Registrar after examining the matter  came  to the  conclusion that it was a dispute which could be  enter- tained within the scope of Sec. 96 and therefore referred it to  his nominee for decision. It could not be  doubted  that the Registrar exercised jurisdiction under Sec. 96 and  came to the conclusion and therefore the High Court was right  in coming to the conclusion that once the Registrar takes  this decision  he has no power to review his order. In this  view of the matter we see no reason to entertain this appeal. The appeal  is therefore dismissed. In the circumstances of  the case parties are directed to bear their own costs. N.P.V.                                          Appeal  dis- missed. 901