Full Judgment Text
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PETITIONER:
EVEREST APARTMENTS CO-OPERATIVE HOUSINGSOCIETY LTD.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA & ORS.
DATE OF JUDGMENT:
18/01/1966
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
SUBBARAO, K.
BACHAWAT, R.S.
CITATION:
1966 AIR 1449 1966 SCR (3) 365
CITATOR INFO :
D 1984 SC1048 (16)
ACT:
Maharashtra Co-operative Societies Act, 1960(24 of 1961),
ss.23(2) 154--Orders of Deputy Registrar under s. 23(2)-
Whether final--state Government whether has revisional
jurisdiction over them under s, 154-Parties whether can
invoke revisional jurisdiction.
HEADNOTE:
The appellant was a registered co-operative Housing Society,
registered under the Maharashtra Co-operative Societies Act,
1960. S, respondent no. 4, applied for membership of the
society but this was refused. He appealed under s. 23(2) of
the Act to the Deputy Registrar Co-operative societies who
decided in his favour. The appellant filed an application
before the State Government for revision purporting to be
under s. 154 of the Act which was rejected on the ground
that Government had no revisional jurisdiction against
orders under s. 23(3). The appellant then went to the High
Court under Arts. 226 and 227 and failing there also came to
this Court by special leave. The questions that fell to be
decided were. (i) Is the finality under s. 23(3) subject to
s. 154 and (ii) Has a. party a right to move the State
Government under s. 154 ?
HELD : (i) There is no doubt that s. 154 is potential but
not compulsive. Power is reposed in Government to intervene
to do justice when occasion demands it and of the occasion
for its exercise Government is made sole judge. This power
can be exercised in all cases except in a case in which a
similar power has already been exercised by the Tribunal
under s. 149(9) of the Act. The exception was considered
necessary because the legality or propriety of an order
having been considered once,, it would be an act of
superetogation to consider the matter twice. it follows,
therefore, that Government can exercise its powers under s.
154 in all cases with one exception only, and that the
finality of the order under s. 23(3) does not restrict the
exercise of the power. The word ’final’ in this context
means that the order is not subject to an ordinary appeal or
revision but it does not touch the special power
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legislatively conferred on Government, ’Me Government was in
error in considering that it had no jurisdiction in this
case for it obviously had. [371 B-D]
Commissioner of Income-tax West Punjab v. The Tribune Trust,
Lahore, (1948) 16 I.T.R. 214 (P.C.) and Sheffield
Corporation v. Luxford, (1929] 2 K.B. 180, referred to.
(ii)The fact that s. 154 does not expressly permit a party
to invoke the revision jurisdiction under that section does
not mean that a party is prohibited from moving the
Government. But as Government is not compelled to take
action, unless it thinks fit the party who moves the
Government cannot claim that he has a right of appeal or
revision. On the other hand Government should welcome such
applications because they draw its attention to cases in
some of which it may be interested to intervene. [371 F]
366
Sheffield Corporation v. Luxford, 119291 2 K.B. 180,
distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1 of 1966.
Appeal by special leave from the order dated June 30, 1965
of the Bombay High Court in Special Civil Application No.
1027 of 1965.
S.V. Gupte, Solicitor-General and N. N. Keswani, for the
appellant.
Niren De, Additional Solicitor-General and B. R. G. K.
Achar, for respondent No. 1.
The judgment of the Court was delivered by
Hidayatullah, J. In this appeal by special leave we are not
concerned with the merits of the controversy between the
appellant and the fourth respondent, who are the contesting
parties, because only two short questions of law arise for
our decision. The appellant is a registered co-operative
Housing Society, registered under the Maharashtra Co-
operative Societies Act, 1960 (XXIV of 1961). The Society
was promoted by two individuals for the construction of a
block of flats in Bombay. Shivdasani (respodent 4) claims
to have paid the entrance fee, share money and other demands
and complaints that his membership was wrongly rejected by
the Society. The Society denies these statements and the
claim. We are not concerned with the details of this
dispute. What we are concerned with is this: On being
informed of the rejection of his application for membership,
Shivdasani filed an appeal under s. 23(2) of the above Act,
which was heard and decided in his favour by the District
Deputy Registrar, Co-operative Societies, Bombay. The
Society filed an application before the State Government for
revision purporting to be under s. 154 of the Act. This
application was rejected. The Society was intimated this
result by the Under Secretary to the Government of
Maharashtra (Agriculture and Cooperative Department) and the
communication (CAR/1064/426590/ C-42, 17th May, 1965) was as
follows
"Sir,
I am directed to state that following the
hearing to you by the Deputy Secretary of this
Department on 10th March, 1965, in connection
with the subject noted above, a note was
received in this Department from Shri M. G.
Mani, Advocate wherein it was claimed that
though an order was final under Section 23(3)
of the Maharashtra Cooperative Societies Act,
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1960, Government had inherent revisionary
powers under Section 154 of the said Act to
entertain in such representations against such
an order. I am to inform you that the matter
has been examined by Government and to state
that in such cases orders given
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under Section 23(3) are final and Government
has no revisional jurisdiction in such a
matter.,
Yours faithfully,
Sd/- (D. A. EKBOTE)
Under Secretary to Government."
The Society filed a petition under Arts. 226 and 227 of the
Constitution in the High Court of Bombay which was also
rejected (S.C.A. 1027/65, 30 June, 1965). The High Court
passed a short and laconic order which reads:
"Government right in declaring no
jurisdiction. It is wrong to say that
respondent had withdrawn the application
voluntarily. Attitude of the Society unjust.
Admittedly the promoters were members of
Everest Co. and they wanted Rs. 3,000 from
each one for themselves.
Societies are not meant for self
aggrandizement. No ground to interfere.
REJECTED."
It is against the last order that the present appeal has
been brought and the first question is whether the
Government is right in law in declining to interfere because
it has "no revisional jurisdiction in such a matter." The
answer to this question depends upon the construction of s.
154 of the Act but before we attempt it, we shall say
something about the Act and the provisions applicable to
this case.
The Maharashtra Co-operative Societies Act, which replaced
the Bombay Co-operative Societies Act, 1925 was passed to
provide for the orderly development of the co-operative
movement in the State of Maharashtra. It deals, among
others, with housing societies, the object of which is to
provide their members with dwelling houses. Every society
having as its objects the promotion of the economic
interests or general welfare of its members, or of the pub-
lic, in accordance with co-operative principles and which is
economically sound may register under the Act. This
entitles the societies to obtain certain benefits. The
State Government appoints a Registrar of Co-operative
Societies, who has numerous powers under the Act, and may
appoint one or more persons to assist him and may confer all
or any of the powers of the Registrar upon them. Chapter II
of the Act then deals with registration of societies and all
matters connected therewith. Chapter III next deals with
members and their rights and liabilities. Section 22 in
that Chapter lays down who may become a member of a society
and by its second sub-section provides:
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"22. Person who may become member.
(2)Where a person is refused admission as a member of a
society, the decision (with the reasons therefore) shall be
communicated to that person within fifteen days of the date
of the decision, or within three months from the’ date of
the application for admission,-whichever is earlier."
Section 23 then gives a right of appeal to a member who has
been refused admission. It provides:
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"23. Open membership.
(1)No society shall, without sufficient cause, refuse
admission to membership to any person duty qualified
therefore under the provisions of this Act and its by-laws.
(2)Any person aggrieved by the decision of a society,
refusing him admission to its membership, may appeal to the
Registrar.
(3)The decision of the Registrar in appeal, shall be final
and the Registrar shall communicate his decision to the
parties within fifteen days from the date thereof."
The appeal of Shivdasani was made under the above section.
After the order in appeal was passed by the Registrar, the
Society moved the State Government under s. 154 to exercise
its powers under that section. It reads:
"154. Power of State Government and Registrar
to call for proceedings of subordinate officer
and to pass orders thereon.
The State Government and the Registrar may
call for and examine the record of any inquiry
or the proceedings of any other matter of any
officer subordinate to them, except those
referred to in sub-section (9) of section 149
for the purpose of satisfying themselves as to
the legality or propriety of any decision or
order passed, and as to the regularity of the
proceedings of such officer. If in any case,
it appears to the State Government, or the
Registrar, that any decision or order or
proceedings so called for should be modified,
annulled or reversed, the State Government or
the Registrar, as the case may be, may after
giving persons affected thereby an opportunity
of being heard pass such order thereon as to
it or him may seem just."
The State Government held that it had no jurisdiction as
orders given under s. 23(3) were final. Two questions arise
here: (i) Is
369
the finality under s. 23(3) subject to s. 154, and (ii) Has
a party a right to move the State Government under s. 154?
Mr. Niren De defending the order of the State Government as
well as that of the High Court, admits that the State
Government has been given a power to call for and examine
the record of any enquiry or the proceedings of any other
matter of any officer subordinate to it, except those
referred to in sub-section 9 of S. 149, and that as the
present is not a matter under S. 149(9) the power could be
exercised by Government for the purpose of satisfying itself
as to the legality or propriety of the order. In other
words, he does not contest that the finality stated by s.
23(3) does not affect the power of the State Government. In
making this admission he is clearly right. The Act has
provided for appeals in other sections and the decision on
appeal is stated to be final. Yet the power of
superintendence is given to the State Government in general
terms in respect of any inquiry or proceeding with only one
exception, namely, the proceedings of the Maharashtra State
Tribunal, when the Tribunal calls for and examines 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. By mentioning
one specific exception to the general power, the Act has
indicated an intention to include every other inquiry or
proceeding within the action by Governments as contemplated
by s. 154. Mr. De, however, contends, firstly, that the
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action by Government is intended to be on its own motion and
not by application, and, secondly, that the power need not
be exercised unless Government itself feels that its
exercise is necessary. He refers, by way of contrast, to
the opening words of s. 150 where provision is made for
review of orders of the Tribunal in these words :
"150. Review of orders of Tribunal.
(1)The Tribunal may, either on the
application of the Registrar, or on the
application of any party interested, review
its own order in an case, and pass in
reference thereto such order as it thinks
just:
Provided that, no such application made by the
party interested shall be entertained, unless
the Tribunal is satisfied that there has been
the discovery of new and important matter of
evidence, which after the exercise of due
diligence was not within the knowledge of the
applicant or could not be produced by him at
the time when its order was made, or that
there has been some mistake or error apparent
on the face of the record, or for any other
sufficient reason:
370
Mr. De next submits that this power not being coupled with
any duty need not be exercised by Government even if moved
to take action, unless Government itself feels inclined. He
relies upon the Commissioner of Income Tax, West Punjab v.
The Tribune Trust, Lahore.’ In that case the question was
whether s. 33 of the Indian Income Tax Act, 1922 which
conferred revisional jurisdiction on the Commissioner
established a right to relief on the application of an
assessee. It was contended by the assessees in that case
that the relief claimed by them under s. 33 was wrongly
denied to them. In dealing with this contention Lord Simond
(later Viscount) observed, at page 225 of the report, as
follows:-
"The fallacy implicit in this question has
been made clear in the discussion of the first
two questions. It assumes that Section 33
creates a right in the assessee. In their
Lordships’ opinion it creates no such right.
On behalf of the respondent the well-known
principle which was discussed in Julius v.
Bishop of Oxford-(1880) 5 App. Cas. 214--was
invoked and it was urged that the section
which opens with the words "The Commissioner
may of his own motion" imposed upon him a duty
which he was bound to perform upon the
application of an assessee. It is possible
that there might be a context in which words
so inept for that purpose would create a duty.
But in the present case there is no such
context. On the contrary Section 33 follows
upon a number of sections which determine the
rights of the assessee and is itself, as its
language clearly indicates, intended to
provide administrative machinery by which a
higher executive officer may review the acts
of his subordinates and take the necessary
action upon such review. It appears that as a
matter of convenience a practice has grown up
under which the Commissioner has been invited
to act "of his own motion" under the section
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and where this occurs a certain degree of
formality has been adopted. But the language
of the section does not support the
contention, which lies at the root of the
third question and is vital to the
respondent’s case, that it affords a claim to
relief. As has been already pointed out,
appropriate relief is specifically given by
other sections: it is not possible to
interpret Section 33 as conferring general
relief."
Mr. De also relies upon certain passages from Julius v.
Bishop of Oxford2 which show the distinction between power
which is discretionary in its exercise and power which must
be exercised every time the occasion for its exercise
arises. He contends in the words of Talbot J. in Sheffield
Corporation v. Luxford 3 that the
(1) (1948) 16 I.T.R. 214 P.C. (2) (1880) 5
App. Cas. 214.
(3). (1929) 2 K.B. 180 at 183.
37 1
word "may" always means "may" which is a permissive or
enabling expression and that there are no circumstances
either in the Act or in the facts here, by which it can be
said that Government was under a duty to interfere. He
submits that the order of Government must be read as
indicating the above position and not that it had no
jurisdiction.
There is no doubt that S. 154 is potential but not
compulsive. Power is reposed in Government to intervene to
do justice when occasion demands it and of the occasion for
its exercise, Government is made the sole judge. This power
can be exercised in all cases except in a case in which a
similar power has already been exercised by the Tribunal
under s. 149(9) of the Act. The exception was considered
necessary because the legality or the propriety of an order
having been considered once, it would be an act of
supererogation to consider the matter twice. It follows,
therefore, that Government can exercise its powers under s.
154 in all cases with one exception only and that the
finality of the order under s. 23(3) does not restrict the
exercise of the power. The word ’final’ in this context
means that the order is not subject to an ordinary appeal or
revision but it does not touch the special power legisla-
tively conferred on Government. The Government was in error
in considering that it had no jurisdiction in this case for
it obviously had.
There remains the question whether a party has a right to
move Government. The Tribune Trust case is distinguishable
and cannot help the submission that Government cannot be
moved at all. The words of the two enactments are not
materially equal. The Income-tax Act used the words ’suo
motu’ which do not figure here. It is, of course, true that
the words "on an application of a party" which occur in s.
150 of the Act and in similar enactments in other Acts, are
also not to be found. But that does not mean that a party
is prohibited from moving Government. As Government is not
compelled to take action, unless it thinks fit, the party
who moves Government cannot claim that he has a right of
appeal or revision. On the other hand, Government should
welcome such applications because they draw the attention of
Government to cases in some of which, Government may be
interested to intervene. In many statutes, as for example
the two major procedural Codes, such language has not only
not inhibited the making of applications to the High Court,
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but has been considered to give a right to obtain inter-
vention, although the mere making of the application has not
clothed a party with any rights beyond bringing a matter to
the notice of the Court. After this is done, it is for the
court to consider whether to act or not. The extreme
position does not obtain here because there is no right to
interference in the same way as in a judicial proceeding.
Government may act or may not act; the choice is of
Government. There is no right of relief as in an appeal
372
or revision under the two Codes. But to say that Government
has no jurisdiction at all in the matter is to err, and that
is what Government did in this case.
The order of the High Court in these circumstances
overlooked’ that the Government had denied to itself a
jurisdiction which it undoubtedly possessed by considering
that the finality of the order under s. 23(3) precluded
action under s. 154. The High Court ought to have issued a
mandamus to Government to deal with the application before
it within its jurisdiction under s. 154. That mandamus
shall now issue to Government.
The appeal is thus allowed with costs.
Appeal allowed.
373