Gouri Shanker Vs. the Registrar, Co-operative Societies, Jandk Jammu and ors. - Court Judgment

Excerpt:
- orderm.a. shah, j.1. petitioner challenges the recovery proceedings taken against him on the basis of an award given by respondent 2 for the recovery of rs. 24,110/- on jan. 14, 1975, which was confirmed on appeal by respondent 1 by his order dt. april 14, 1976.2. it is alleged in the petition that respondent 3 the sarore multi-purpose cooperative societies ltd., sarore block, hiranagar presented a suit for the recovery of an amount of rs. 24,110/- before respondent 2 against the petitioner on account of the fertilizer issued to the petitioner, who was appointed as agent of respondent 3 to distribute fertilizer to such persons as would obtain an order in that regard from its secretary. the fertilizer used to be issued to the farmers against a bond the payment whereof used to be made by the farmers in instalments. it is further alleged that on receipt of notice from the assistant registrar, the petitioner appeared before him and contested the claim put forward by respondent 3. respondent 2 without any further enquiry and providing any opportunity to the petitioner to adduce evidence proceeded to dispose of the suit and decreed the same for the amount indicated hereinabove. on appeal to the government against the said decree, it was transferred to the registrar for disposal, who by his order dt. april 14, 1976 dismissed the appeal of the appellant, hence this writ, petition.3. the petition is contested by the respondents. respondent 3 in its counter-affidavit refuted the allegations made by the petitioner and contended that the assistant registrar respondent 2 as well as the registrar acted within the framework of the statute and decree is p assed against the petitioner on an enquiry made by respondent 2 according to law.4. at the threshold, the learned counsel for the petitioner while arguing the petition submitted that the dispute alleged to have been referred was neither entertained as envisaged under section 64of the j&k; co-operative societies act, 1960 (hereinafter called the act) by the registrar on a reference under section 63 of the act nor the same falls within the ambit of the provisions of section 63 of the act. it is submitted that no reference was made to the registrar in the absence of which the decree passed by respondent 2 is liable to be set aside being without jurisdiction. in order to attract the jurisdiction under section 64 of the act, the reference under section 63 of the act is a sine qua non, which is not available in the present case. it also pointed out that the petitioner was only a dealer appointed by respondent 3, as such there was no relationship between him and the society to cover the dispute under any of the clauses of section 63 of the act to confer jurisdiction on the registrar to entertain the dispute either under section 63 or section 64 of the act. it is vehemently argued that a dealer can neither be deemed as a member or an agent or a servant of the society. learned counsel for the respondents in reply submitted that the petitioner is fully covered by the word 'agent' to whom the supplies weremade by the society respondent 3 of the fertilizers, which were misappropriated by him and stood unaccounted for as found by respondent 2. the findings of fact cannot be assailed in the writ jurisdiction. the petition, therefore, according to him is liable to be dismissed,5. it is now well settled that a writ jurisdiction is conferred o the high court to correct the errors of law and jurisdiction committed by the tribunals or the subordinate authorities empowered to act under the statute and in doing so the high court does not sit as a court of appeal against the orders passed by the subordinate tribunals. the argument of the learned counsel for the petitioner that the reference envisaged by section 64 of the act must exist before the registrar acquires jurisdiction to dispose of the dispute referred to him, in my opinion on the facts as found does not hold water on the face of the suit filed by respondent 3.so form of reference is provided under section 64 of the act, if a party covered by the provisions of section 63 approaches the registrar and he certain the dispute, the necessary consequences envisaged by clauses (a) to (c) of sub-section (1) of section 64 of the act necessarily follow. it is not disputed herein that the assistant registrar-respondent 2 was authorised to exercise the powers of the registrar for the purposes of entertaining the disputes under section 64 of the act and if he chooses to decide the dispute himself, his action is fully covered by cl, (a) to sub-section (1) of section 64 of the act, which confers jurisdiction on him in the following words : --'(a) decide the dispute himself.'in the instant case, it cannot be said by any stretch of imagination that the reference was not made by way of filing a suit at the initiative of respondent 3, which was entertained by respondent 2 in exercise of the powers conferred on him under section 64 of the act. thus his action cannot be said to be without jurisdiction. similarly petitioner having been appointed a dealer was undoubtedly working on behalf of the society-respondent 3 as an agent and was liable to discharge obligations conferred on the agent under the framework of law. the word 'agent' needs no further elaboration as he is specifically covered under clause (b) of sub-section (1) of section 63 of the act being an agent of the society and, therefore, any dispute touching the business of the society arising between the society and an agent squarely falls within the ambit of the section. under the circumstances, the petitioner cannot shift his responsibility merely by saying that he is not covered by the provisions of this section. moreover, this being a question of fact, which has been found on enquiry and determined by the assistant registrar on an elaborate enquiry and confirmed on appeal cannot be assailed in writ jurisdiction.6. adverting to the last argument of violation of principles of natural justice in not affording an opportunity to the petitioner to adduce evidence, i find that the argument on this count also has no legs to stand. petitioner was given an opportunity on hisown admission of contesting the suit and as is apparent from the order passed by respondent 2 detailing the evidence, it is found that the petitioner absented himself and did not participate in the proceedings. a party cannot accuse the authority for violation of principles of natural justice if he himself fails to avail that opportunity. no such circumstances have been brought forward on record pointing towards the fact that the petitioner wanted to avail the opportunity of adducing evidence, which was refused to him so as to require indulgence in his favour. this argument also, therefore, fails and the petition under such circumstances deserves to be dismissed.7. the petition, therefore, fails, which is hereby dismissed leaving the parties to bear their own costs. it also disposes of c.m.p. no. 134 of 1976 and the interim order passed on aug. 19, 1976 stands vacated.

Judgment:
ORDER

M.A. Shah, J.

1. Petitioner challenges the recovery proceedings taken against him on the basis of an award given by respondent 2 for the recovery of Rs. 24,110/- on Jan. 14, 1975, which was confirmed on appeal by respondent 1 by his Order dt. April 14, 1976.

2. It is alleged in the petition that respondent 3 The Sarore Multi-purpose Cooperative Societies Ltd., Sarore Block, Hiranagar presented a suit for the recovery of an amount of Rs. 24,110/- before respondent 2 against the petitioner on account of the fertilizer issued to the petitioner, who was appointed as agent of respondent 3 to distribute fertilizer to such persons as would obtain an order in that regard from its Secretary. The fertilizer used to be issued to the farmers against a bond the payment whereof used to be made by the farmers in instalments. It is further alleged that on receipt of Notice from the Assistant Registrar, the petitioner appeared before him and contested the claim put forward by respondent 3. Respondent 2 without any further enquiry and providing any opportunity to the petitioner to adduce evidence proceeded to dispose of the suit and decreed the same for the amount indicated hereinabove. On appeal to the Government against the said decree, it was transferred to the Registrar for disposal, who by his Order dt. April 14, 1976 dismissed the appeal of the appellant, hence this Writ, Petition.

3. The petition is contested by the respondents. Respondent 3 in its counter-affidavit refuted the allegations made by the petitioner and contended that the Assistant Registrar respondent 2 as well as the Registrar acted within the framework of the Statute and decree is p assed against the petitioner on an enquiry made by respondent 2 according to law.

4. At the threshold, the learned counsel for the petitioner while arguing the petition submitted that the dispute alleged to have been referred was neither entertained as envisaged under Section 64of the J&K; Co-operative Societies Act, 1960 (hereinafter called the Act) by the Registrar on a reference under Section 63 of the Act nor the same falls within the ambit of the provisions of Section 63 of the Act. It is submitted that no reference was made to the Registrar in the absence of which the decree passed by respondent 2 is liable to be set aside being without jurisdiction. In order to attract the jurisdiction under Section 64 of the Act, the reference under Section 63 of the Act is a sine qua non, which is not available in the present case. It also pointed out that the petitioner was only a dealer appointed by respondent 3, as such there was no relationship between him and the Society to cover the dispute under any of the clauses of Section 63 of the Act to confer jurisdiction on the Registrar to entertain the dispute either under Section 63 or Section 64 of the Act. It is vehemently argued that a dealer can neither be deemed as a member or an agent or a servant of the society. Learned counsel for the respondents in reply submitted that the petitioner is fully covered by the word 'Agent' to whom the supplies weremade by the Society respondent 3 of the fertilizers, which were misappropriated by him and stood unaccounted for as found by respondent 2. The findings of fact cannot be assailed in the writ jurisdiction. The petition, therefore, according to him is liable to be dismissed,

5. It is now well settled that a writ jurisdiction is conferred o the High Court to correct the errors of law and jurisdiction committed by the Tribunals or the Subordinate Authorities empowered to act under the Statute and in doing so the High Court does not sit as a court of appeal against the orders passed by the Subordinate Tribunals. The argument of the learned counsel for the petitioner that the reference envisaged by Section 64 of the Act must exist before the Registrar acquires jurisdiction to dispose of the dispute referred to him, in my opinion on the facts as found does not hold water on the face of the suit filed by respondent 3.So form of reference is provided under Section 64 of the Act, if a party covered by the provisions of Section 63 approaches the Registrar and he certain the dispute, the necessary consequences envisaged by Clauses (a) to (c) of Sub-section (1) of Section 64 of the Act necessarily follow. It is not disputed herein that the Assistant Registrar-Respondent 2 was authorised to exercise the powers of the Registrar for the purposes of entertaining the disputes under Section 64 of the Act and if he chooses to decide the dispute himself, his action is fully covered by Cl, (a) to Sub-section (1) of Section 64 of the Act, which confers jurisdiction on him in the following words : --

'(a) decide the dispute himself.'

In the instant case, it cannot be said by any stretch of imagination that the reference was not made by way of filing a suit at the initiative of Respondent 3, which was entertained by Respondent 2 in exercise of the powers conferred on him under Section 64 of the Act. Thus his action cannot be said to be without jurisdiction. Similarly petitioner having been appointed a dealer was undoubtedly working on behalf of the Society-Respondent 3 as an agent and was liable to discharge obligations conferred on the Agent under the framework of law. The word 'Agent' needs no further elaboration as he is specifically covered under Clause (b) of Sub-section (1) of Section 63 of the Act being an agent of the Society and, therefore, any dispute touching the business of the Society arising between the Society and an agent squarely falls within the ambit of the Section. Under the circumstances, the petitioner cannot shift his responsibility merely by saying that he is not covered by the provisions of this section. Moreover, this being a question of fact, which has been found on enquiry and determined by the Assistant Registrar on an elaborate enquiry and confirmed on appeal cannot be assailed in writ jurisdiction.

6. Adverting to the last argument of violation of principles of natural justice in not affording an opportunity to the petitioner to adduce evidence, I find that the argument on this count also has no legs to stand. Petitioner was given an opportunity on hisown admission of contesting the suit and as is apparent from the Order passed by Respondent 2 detailing the evidence, it is found that the petitioner absented himself and did not participate in the proceedings. A party cannot accuse the Authority for violation of principles of natural justice if he himself fails to avail that opportunity. No such circumstances have been brought forward on record pointing towards the fact that the petitioner wanted to avail the opportunity of adducing evidence, which was refused to him so as to require indulgence in his favour. This argument also, therefore, fails and the petition under such circumstances deserves to be dismissed.

7. The petition, therefore, fails, which is hereby dismissed leaving the parties to bear their own costs. It also disposes of C.M.P. No. 134 of 1976 and the interim Order passed on Aug. 19, 1976 stands vacated.