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PETITIONER: YOGENDRA PRASAD

       Vs.

RESPONDENT: ADDL. REGISTRAR, CO-OP. SOCIETIES, BIHAR AND ORS.

DATE OF JUDGMENT17/09/1991

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. RAMASWAMY, K.

CITATION:  1991 AIR 2137            1991 SCR  Supl. (1) 143  1992 SCC  Supl.  (1) 720

ACT:     Bihar  and Orissa Cooperative Societies Act,  1935--Sec- tions 48 (6), 56 - Legislative intention--Revisionary powers of Registrar--Construction, nature and ambit of.     Bihar  and Orissa Cooperative Societies Act,  1935--Sec- tions  40,  48--Initiation of proceeding u/s.  40  prior  to proceeding u/s. 48--Whether amounts to double jeopardy.     Bihar  and Orissa Cooperative Societies Act,  1935--Sec- tions 2(1),2(a),6,26,56--"Registrar"--Construction---Whether assistants  of  Registrar  eligible to  exercise  powers  of Registrar.

HEADNOTE:     The appellant, an Ex-Treasurer of a Co-operative Society was  said to have defalcated a sum of Rs. 95,790.54 and  for recovery  thereof, proceedings were initiated under  section 48 of the Bihar and Orissa Co-operative Societies Act,  1935 with  interest accrued thereon of Rs. 25,55 as  on  December 30, 1976.     The  Registrar referred the matter to the Asstt.  Regis- trar who on enquiry and having given the opportunity to  the appellant passed an award, against which appeal was filed.     The  Deputy Registrar allowed the appeal on  the  ground that the appellant was surcharged.     On  revision, the first respondent set aside the  appel- late order and confirmed the award with a further  direction to pay interest till date of recovery.     The appellant filed a writ petition which was  dismissed in  limine  by the High Court against which this  appeal  by special leave.   The  appellant contended that the Registrar had  no  revi- sional 144 jurisdiction under Section 56 since the award of the  Asstt. Registrar  was  by  the Registrar under the  Act  acting  as Registrar’s delegate; that surcharge proceedings against the appellant  were  initiated  under Section 40  in  which  the appellant  was found payable of partial amount,  as  against which,  the society filed an appeal before  the  Government, which was pending and the award amounted to double  jeopardy for the same liability and therefore, it was illegal. Dismissing the appeal, this Court,

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   HELD:  1.  A bare reading of the relevant provisions  in Section 48 clearly manifests the legislative intention  that the  Registrar on reference, himself may decide the  dispute or transfer it for disposal to a person exercising powers of the  Registrar  in  this behalf. If  the  Registrar  himself decides  the  dispute under Section 48(3)  the  question  of either  appeal  or revision to him does not arise  except  a review. This dichotomy is to be maintained when a revisional power  is  to be exercised by the Registrar.  The  power  of revision is conferred expressly only, either on  application or suo moto, against any order passed by "a person  exercis- ing the powers of the Registrar". Obviously it refers to the person appointed to assist him under s. 6(2) (a) of the Act. [148G-H, 149 A]     2.  The Registrar under s. 6(1) of the Act has his  pre- eminent  supervisory authority over the function and  orders of  the Registrars appointed under s. 6(2)(a) to assist  him in  the discharge of the duties or functions under  the  Act except over his delegate under sub-section (4) of s. 6.  His supervisory  or revisional power is to correct all  palpable material errors in the orders passed or the action taken  by the subordinate officers feeding injustice.  Merely  because the Asstt. Registrar on reference exercised the powers under sub,section  (3) of s. 48. The Registrar is not  denuded  of his supervisory or revisional powers under s. 56 of the Act. Therefore, the Addl. Registrar as delegate of the  Registrar is clearly within his power to exercise his revisional power over  the appellate order under S. 48(6) of the Act.  It  is accordingly legal and valid. [149 E-G]     3. The language in s. 56 was couched very widely without being hedged with any limitation like the revisional  powers under  s. 115 C.P.C. or the similar language used in  sister Acts in some other States. The reason appears to be obvious. The order of the Dy. Registrar by language 145 of sub-section (6) ors. 48, undoubtedly shall be final. When the legislature gives ’finality’ to an order, it is normally not open to revision. But still it must be construed in  the light of the scheme of the Act, its operation and  resultant effect. The language in s. 56 is not hedged with any limita- tion  of the finality in sub-section (6) of Section 48.  The revisional  power  under section 56 is  independent  of  the appellate powers under section 48(6). The latter is amenable to revision by the Registrar. [150 D-F]     4.  The proceedings under s. 40 are not in  substitution of  s.  48, but are independent of and in  addition  to  the normal  civil remedy under s. 48. The  culpable  negligence, misconduct,  misappropriation, fraudulent conduct  etc.  are relevant  facts to be established in the  proceedings  under section 40. But that is not so under section 48.  Therefore, mere  initiation  or an order passed under s.  40  does  not divest  the jurisdiction or power of the Registrar under  s. 48  when it was referred to for a decision of  the  dispute. Exercise of the jurisdiction to pass an award under s. 48(3) or revision under s. 56 does not amount to double  jeopardy. [151 C-D]     5.  Section 2(i) of the Act defines  "Registrar",  which means a person appointed to perform the duties of  Registrar or Co-operative Societies under this Act. The State  Govern- ment  may  appoint a person to be the Registrar of  the  Co- operative  Societies besides Additional Registrar  and  also appoint persons to assist such Registrar. Under  sub-section 2(a)  the  persons  appointed to assist  the  Registrar  are entitled to exercise all or any of the powers of the  Regis- trar  under the Act except under s. 26. Sub-section  (4)  of

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Section 6 gives power to the Registrar to delegate, transfer or  assign to the Addl. Registrar all the  powers  including the powers under s. 26 and 56 and thereupon the Addl. Regis- trar as a delegate of the Registrar is empowered to exercise powers  so  transferred  or assigned or  delegated  to  him. Section  6  thereby makes a clear  distinction  between  the exercise of the powers of the Registrar, by the Addl. Regis- trar  as  a  delegate of the Registrar  and  of  the  Asstt. Registrars or Dy. Registrars appointed to assist the  Regis- trar  empowered as such in the discharge of their  functions under  the  Act. Such assistants are entitled  by  statutory operation to exercise the powers under the Act conferred  by the  State Govt. except to the extent expressly excluded  by the statute. [147 B, 148 A-B] Din  Dayal  Singh v. The Bihar State  Cooperative  Marketing Union Ltd., 146 AIR 1976 Patna 179, over-ruled     Chintapalli  Agency  Taluk Arrack Sales  Co-op.  Society Ltd.  v.  Secretary (Food & Agricultural), Govt.  of  Andhra Pradesh, [1978] 1 SCR 563, followed.     Roop Chand v. State of Punjab, [1963] Suppl. 1 SCR  539, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No.2168 of 1980.     From the Judgment and Order dated 2.8.1979 of the  Patna High Court in C.W.J.C. No.1819 of 1979. R.K. Khanna and R.P. Singh for the Appellant. L.C. Goyal for the Respondents. The Judgment of the Court was delivered by     K. RAMASWAMY, J. The appellant, the Ex-Treasurer of  the Gopalganj Co-op. Development & Cane Marketing Union,  Gopal- ganj, was said to have defalcated a sum of Rs. 95,790.54 and for recovery thereof, proceedings were initiated under s. 48 of  the Bihar and Orissa Co-operative Societies Act,  VI  of 1935,  for short ’the Act’ with interest accrued thereon  of Rs.  25,555 as on December 30, 1976. The Registrar  referred the  matter to the Asstt. Registrar, Gopalganj, who  on  en- quiry  and  having given the opportunity  to  the  appellant passed an award in Case No. 400 of 1975 on December 30, 1976 for the aforesaid sums. On appeal, the Deputy Registrar  set aside the award on the ground that the appellant was  surch- arged in Surcharge Case No. 18 of 1976. On further revision, the  first  respondent  set aside the  appellate  order  and confirmed the award with a further direction to pay interest till date of recovery. The appellant filed C.W.J.C. No. 1819 of  1979  which was dismissed in  limine by the  Patna  High Court on August 2, 1979. Thus this appeal by Special Leave.     The  learned counsel for the appellant raised two-  fold contentions. His first contention is that the Registrar  has no  revisional jurisdiction under s. 56 since the  award  of the  Asstt. Registrar is by the Registrar under the Act  and the  Asstt.  Registrar  acted as his  delegate.  In  support thereof he placed strong reliance on Din Dayal Singh v.  The Bihar State Cooperative Marketing Union Ltd, AIR 1976  Patna 179.  It  is further contended  that  surcharge  proceedings against the appellant were initiated under s. 40 in    147 which  the appellant was found payable of partial amount  as against which the society filed an appeal before the Govern- ment which is pending. The award amounts to double  jeopardy

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for the same liability. Therefore, it is illegal. We find no substance in either contention.     Section  2  (i) of the Act  defines  ’Registrar’,  which means a person appointed to perform the duties of  Registrar of  Co-operative  Societies  under this Act.  Section  6  in Chapter II provides thus:               "6.  The Registrar-- (1) The State  Government               may  appoint a person to be registrar  of  Co-               operative  Societies  for  the  State  or  any               portion  of  it, and may  appoint  persons  to               assist such Registrar.               (2)  The State Government may, by  general  or               special  order published in the  Official  Ga-               zette, confer -               (a) 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; and               (b) on any Co-operative Federation or  financ-               ing  bank  all  or any of the  powers  of  the               Registrar under Section 20, sub-section (3) of               Section 28 and Section 33.               (3)  Where the State Government is of  opinion               that  the  Registrar needs the  assistance  of               Additional  Registrar for speedy  disposal  of               business,  it  may by order published  in  the               Official  Gazette,  appoint  such  number   of               Additional Registrar as it may deem fit.               (4)  Notwithstanding anything to the  contrary               contained  in any other provision of the  Act,               the Registrar may delegate, transfer or assign               to the Additional Registrar such of his powers               and  functions and duties as he  may  consider               necessary  including the power under  sections               26 and 56 and the Additional Registrar  shall,               thereupon have powers of Registrar in  matters               so delegated, transferred or assigned to him."     From a reading of sub-sections (1) to (3) of s. 6, it is clear  that the State Government may appoint a person to  be the Registrar of the Cooperative Societies besides Addition- al Registrar and also appoint persons to assist such  Regis- trar. Under sub-section 2 (a) the persons appointed to 148 assist the Registrar are entitled to exercise all or any  of the  powers of the Registrar under the Act except  under  s. 26.  Sub-section (4) gives power to the Registrar  to  dele- gate,  transfer  or assign to the Addl.  Registrar  all  the powers including the power under ss. 26 and 56 and thereupon the Addl. Registrar as a delegate of the Registrar is empow- ered to exercise powers so transferred or assigned or  dele- gated  to him. Section 6 thereby makes a  clear  distinction between the. exercise of the powers of the Registrar, by the Addl.  Registrars as a delegate of the Registrar and of  the Assn.  Registrars or Dy. Registrars appointed to assist  the Registrar empowered as such in the discharge of their  func- tions under the Act. Such assistants are entitled by  statu- tory  operation  to exercise the powers under the  Act  con- ferred  by  the State Govt. except to the  extent  expressly excluded by the statute.     Section 48 provides procedure to adjudicate any  dispute touching  the business of a registered Society other than  a dispute  regarding disciplinary action taken by the  Society or  its  Managing Committee against a paid  servant  of  the society, arising amongst its members covered by clauses  (a) to (e) and (c) covering any officer, agent or servant of the

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society  (past or present). Such disputes shall be  referred to  the Registrar. Under sub-section (2) thereof the  Regis- trar  may on receipt of such reference (a) decides the  dis- pute by himself or (b) transfer for disposal to "any  person exercising  the powers of the Registrar in  this  behalf’... Under sub-section (3) the Registrar (Assistant or Deputy) on reference  shall dispose of the same in th  manner  provided and the rules. A right of appeal under s.48 (6) is  provided against  the award made under sub-section  (3).  Sub-section (9)  provides the subject to the orders of the Registrar  on appeal  or review a decision given in a dispute  transferred or  referred under clauses (b) and (c) shall be final.  Sec- tion 56 provides power of revision thus:               Power of revision by Registrar - 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               s. 44"     A  bare  reading of these  relevant  provisions  clearly manifests  the legislative intention that the  Registrar  on reference, himself may decide the dispute or transfer it for disposal  to a person exercising powers of the Registrar  in this  behalf. If the Registrar himself decides  the  dispute under s. 48(3) the question of either appeal or revision  to him does not arise except a review. This dichotomy is to  be maintained when a revisional power is to be exercised by the Registrar. The power of the revision is conferred  expressly only, either on application or suo moto, against any 149 order  passed  by  "a person exercising the  powers  of  the Registrar".  Obviously it refers to the person appointed  to assist him under s. 6(2)(a) of the Act.     In Chintapalli Agency Taluk Arrack Sales Co-op.  Society Ltd.   v.  Society  (Food & Agriculture),  Govt.  of  Andhra Pradesh,  [1978] 1 S C R 563 a similar question had  arisen. The  Dy. Registrar of Co-operative Societies gave notice  to the  appellant and amended under s. 16 (5) of the  A.P.  Co- operative  Societies Act, the Bye-laws of the Society so  as to restrict the area of operation within the specified area. On  a  revision  filed against the order under  s.  77,  the Registrar  gave certain directions which was assailed  being without  jurisdiction. When it came before the  High  Court, the  High  Court allowed the writ petition. On  appeal  this court held that the power of the Registrar is in  accordance with  the  pre-eminent position accorded by the Act  to  the Registrar under whose supervision any other person appointed under  s.3 (1) may function and act. "It is, therefore,  not correct  that the Registrar could not exercise powers  under s. 77 in examining the correctness, legality or propriety of the  proceedings  initiated by the Dy.  Registrar  under  s. 16(5) of the Act". It was further held that the power  under s.16  is  that of the Registrar, but the  Dy.  Registrar  is empowered  by  the Government to exercise  the  powers,  but under the general superintendence of the Registrar.  Accord- ingly  it was held that the revision was  maintainable.  The same ratio applies to the facts on hand. The Registrar under s. 6 (1) of the Act has his pre-eminent supervisory authori- ty over the functions and orders of the Registrars appointed under  s.  6(2) (a) to assist him in the  discharge  of  the duties  or functions under the Act except over his  delegate under sub-section (4) of s. 6. His supervisory or revisional power  is  to correct all palpable material  errors  in  the orders  passed or the action taken by the subordinate  offi- cers feeding injustice. The language couched in s. 56 advis- edly was wide of the mark to reach injustice whenever  found

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in the orders or actions of his subordinate officers. Merely because  the  Asstt. Registrar on  reference  exercised  the power under sub-s. (3) of s.48, the Registrar is not denuded of  his supervisory or revisional powers under s. 56 of  the Act.  Therefore,  the  Addl. Registrar as  delegate  of  the Registrar is clearly within his power to exercise his  revi- sional power over the appellate order under s. 48 (6) of the Act.  It is accordingly legal and valid. The ratio  in  Roop Chand v. State of Punjab, [1963] Suppl. 1 SCR 539 is clearly distinguishable.  Therein  the State  Govt.  have  expressly delegated  their power to the Asstt. Director.  Thereby  the Subordinate Officer exercised the powers of the State  Govt. as their delegate. The Govt. was thereafter devoid of powers to  exercise  the  revisional powers  over  the  subordinate officers.  This court in Chintapalli Agency’s  case  (supra) distinguished Roop 150 Chand’s  ratio.  Din  Dayal Singh’s case  (supra)  no  doubt supports  the contention of the appellant. Relying upon  the language  in  sub-section (9) of s. 48 "save  as   expressly provided  in  this section ", the Division  Bench  construed that  the  appellate order of the  Deputy  Registrar  passed under s. 48 (6) was otherwise provided and so was not amena- ble  to revision under s. 56. The learned  Judges  construed that since the appellate order shall be final. The effect of language  under  sub-sec. (9) of s. 48 was  to  exclude  the revisional  jurisdiction of the Registrar under s.  36.   In addition, the Division Bench also construed that the  Regis- trar  himself referred the dispute to the  Asstt.  Registrar and any person exercising the power of the Registrar in this behalf is to be in the parameters of his delegate and  that, therefore, the Registrar himself cannot revise his own order under  s. 56. We find it difficult to approve the  ratio  of the High Court. At the cost of repetition we point out  that s. 6, sub-section (1) and sub-section 2 (a) make a  distinc- tion  between "the Registrar" and "a person  exercising  the powers of the Registrar". Sub-section (4) further  amplifies the exercise of the power of the Registrar by the Additional Registrar as his delegate. That apart, it is clear that  the Registrar is the final supervisory authority over the subor- dinate  officers  exercising the powers  or  performing  the duties  under  the Act.  The language in s. 56  was  couched very  widely without being hedged with any  limitation  like the  revisional  powers under s. 115 C.P.C. or  the  similar language used in sister Acts in some other States like  A.P. The  reason  appears  to be obvious. The order  of  the  Dy. Registrar by language of sub-section (6) of s. 48,  undoubt- edly shall be final. We are aware that when the  legislature gives  "finality"  to an order, it is normally not  open  to revision. But still in must be construed in the light of the scheme  of the Act, its operation and resultant effect.  The language  in s.56 is not hedged with any limitation  of  the finality in sub-section (6) of s. 48. Thus we hold that  the revisional power under s. 56 is independent of the appellate power  under section 48(6). The letter is amenable to  revi- sion by the Registrar.   The ratio of the Division Bench  in Din Dayal’s case (supra) is, therefore, not good law.     The  second  contention  that the award  of  the  Asstt. Registrar  amounts  to double jeopardy offending  his  right under  Art. 20 is misconceived and without  substance.   Un- doubtedly  s.  40 gives power to the Registrar  to  initiate surcharge  proceedings, on receipt of audit report under  s. 33 or an enquiry under s. 35 or on inspection under Ss.  34, 36 or 37 or of the winding up proceedings, if it appears  to the  Registrar  that any person who has taken  part  in  the

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organisation or the management of the society or any past or present  officers  of the society made any  illegal  payment under clause (a); or by reason of his culpable negligence or mis- 151 conduct causes loss or deficiency to the funds of the socie- ty  under  clause (b); or failed to bring into  account  any sums which ought to have been brought into the account under clause (d); or misappropriated or fraudulently retained  any property  of the society or of the financing bank  etc.  The proceedings under s. ,18 are in the nature of a civil  suit, otherwise  cognisable  by a civil court under s.  9  of  the C.P.C.  The statute has taken out the jurisdication  of  the civil  court and expressly conferred on the Registrar  or  a person exercising the powers of the Registrar to decide  the dispute touching the business or management  of the  society between  its  members,  past members etc.  or  their  office bearers,  agent or officers or servants of the society  etc. The  proceedings under s. 40 are not in substitution  of  s. 48,  but  are independent of and in addition to  the  normal civil remedy under s. ,18. The culpable negligence,  miscon- duct, misappropriation, fraudulent conduct etc. are relevant facts to be established in the proceedings under s. 40.  But that is not so under s. 48. Therefore, mere initiation or an order passed under s. 40 does not divest the jurisdiction or power  of the Registrar under s. 48 when it was referred  to for a decision of the dispute.  Exercise of the jurisdiction to  pass  an award under s. ,18(3) or revision  under  s.-56 does not amount to double jeopardy. We are informed that  an appeal  before the Government is pending  against  surcharge order  under s. 40. We express no opinion thereon.  We  hold that exercise of the power to pass an award under s. 48 does not  amount to double jeopardy. The appellate order  of  the Dy. Registrar is obviously and palpably illegal and  rightly corrected.  The appeal is accordingly dismissed,  but  since none appeared for the respondents we order no costs. V.P.R                               Appeal dismissed. 152