Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
PETITIONER:
BIHAR STATE CO-OPERATIVE MARKETING UNION LTD.
Vs.
RESPONDENT:
UMA SHANKAR SHARAN AND ANR.
DATE OF JUDGMENT18/08/1992
BENCH:
SHARMA, L.M. (J)
BENCH:
SHARMA, L.M. (J)
ANAND, A.S. (J)
CITATION:
1993 AIR 1222 1992 SCR (3) 892
1992 SCC (4) 196 JT 1992 (4) 590
1992 SCALE (2)209
ACT:
Bihar and Orissa cooperative societies Act, 1935-
sections 40 and 48-Whether remedy under a specific provision
excludes remedy under a general provision-held, where two
remedies are available, both continue till the election of
one of them, and action commenced accordingly-Section 40
does not therefore exclude section 48-Plurality of Remedies-
Principle of election.
HEADNOTE:
During the tenure of respondent 1 as Depot Manager of
the Bihar State Cooperative marketing Union Ltd., a shortage
of coal was detected. The appellant-Cooperative Union made a
claim for the loss, and a reference was made to the
Assistant Registrar, cooperative societies under section 48
of the Bihar and Orissa Cooperative Societies Act 1935.
section 48(1)(c) deals with disputes between the Society.
and a past or present officer or agent of the Society.
Section 40 provides for investigation by the Registrar where
upon an audit or enquiry such officer has been found guilty
of misappropriation or similar acts. The Assistant Registrar
in an enquiry under Section 48 absolved respondent 1. This
was reversed by the Joint Registrar and an award made
accordingly. The Patna High Court in a writ application
under Article 226 by respondent 1 held that since the matter
was covered by Section 40, Section 48 could not apply and
set aside the award. The High Court relied on the maxim
generalia specialibus non derogant. The claim under section
40 was rejected on the ground of limitation under second
proviso to Section 40 which prescribe a period of six years.
Allowing the appeal, this Court,
HELD : 1. Validity of plural remedies, if available
under the law, cannot be doubted. Even if the two remedies
are inconsistent, they continue for the person concerned to
choose from, until he elects one of them, commencing an
action accordingly. A matter which may attract Section 40
will continue to be governed by Section 48 also if the
necessary conditions
893
are fulfilled. In the present case no steps under Section
40 were ever taken by the appellant. The provisions of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
Section 48 are available to the appellant for the recovery
of the loss. [896C-D]
Prem Jeet Kumar v. Surender Gandotra & Ors., [1991] Supp. 2
SCC 215 and Pentakota Srirakulu v. Co-operative Marketing
Society Ltd., [1965] 1 SCR 186, followed.
2. The claim of the appellant against respondent 1 is
clearly covered by Section 48(1)(c) and therefore was
validly referred to the Registrar under Section 48. [895G]
3. The six year rule of limitation in Proviso under
Section 40(1) is limited for the purpose of Section 40, and
cannot govern a reference under Section 48. Even otherwise,
on facts the claim is not barred by limitation. [897B]
Purnea Ministerial Government Officers’ Co-operative
Society Ltd. v. Abdul Quddus, (1969) 11 BLJR 969,
distinguished.
Matter remitted to the High Court for decision on the
remaining issues. [897F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3047 of
1992.
From the Judgement and Order dated 30.7.1984 of the
Patna High Court in Civil Writ Jurisdiction Case No. 373 of
1977.
M.L. Verma and S.K. Sinha for the Appellant.
A.K. Srivastava for the Respondents.
The Judgement of the Court was delivered by
SHARMA, J. The question arising in this case is
whether a matter, if it comes within the scope of section 40
of the Bihar and Orissa Co-operative Societies Act, 1935
(hereinafter referred to as the Act) has to be excluded from
the purview of Section 48 of the Act.
2. Special leave is granted..
3. The facts relevant for the decision of this appeal
are in a short
894
compass. The respondent No.1 was Depot Manager under the
appellant Marketing Union Limited and during his tenure as
such, a shortage of coal was detected. A claim was
accordingly made for the said loss by the appellant and a
reference was made to the Assistant Registrar, Co-operative
Societies respondent No.3, under Section 48 of the Act. The
Assistant Registrar absolved the respondent No.1 from the
alleged liability and an appeal was filed by the appellant
under Section 48(6) of the Act before the Joint Registrar,
Co-operative Societies, respondent No.2, who are accepted
the appellant’s case, rejected the defence and made an award
accordingly. This was challenged before the Patna High
Court by a writ application under Article 226 of the
Constitution of India. The High Court held that since the
matter was covered by the provisions of Section 40, Section
48 could not apply. Consequently the award was held to be
illegal. So far section 40 was concerned, it was pointed out
that the claim had to be rejected on the ground of
limitation. Thus without considering the other questions
raised by the parties, the High Court allowed the writ
petition by the impugned judgement which is under challenge
in the present appeal.
4. It has been contended on behalf of the appellant
that the provisions of Section 48 are wide enough to embrace
the dispute which has been the subject matter of the present
case and they cannot be given a narrow interpretation so as
to exclude their application to cases which may also be
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
covered by Section 40. In reply reliance has been placed on
behalf of the respondent No.1 on the decision in Purnea
Ministerial Government Officer’s Co-operative Society Ltd.v.
Abdul Quddus, (1969) B.L.J.R. Vol. 11 969 which has found
favour with the High Court.
5. Section 40 pertaining to surcharge, provides that
if as a result of an audit or inquiry it appears to the
Registrar that any person who has taken part in the
organisation or management of the society or any past or
present officer of the society has either made a payment
contrary to law or has been guilty of misappropriation or of
having committed similar acts detailed therein, the
Registrar may inquire into the matter and make an order
requiring him to contribute an appropriate sum by way of
compensation to the assets of the society. The second
Proviso to sub-section (1) of the said section says that no
such order shall be passed in respect of any act or
ommission which had occurred more than six years earlier.
The provisions of sub-section (1) of Section 48 (omitting
the explanations which are not relevant for the present
issue) dealing with Disputes are in the
895
following terms:
"(1) If 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) arises-
(a) amongst members, past members, persons
claiming through members, past members or deceased
members, and sureties of members, past members or
deceased members, whether such sureties are members
or non-members; or
(b) between a member, past member, persons claiming
through a member, past member or deceased member,
or sureties of members, past members or deceased
members, whether such sureties are members or non-
members and the society, its managing committee or
any officer, agent or servant of the society; or
(c) between the society or its managing committee
and any past or present officer, agent or servant
of the society; or
(d) between the society and any other registered
society; or
(e) between a financing bank authorised under the
provisions of sub-section (1) of Sec. 16 and a
person who is not a member of a registered society;
such dispute shall be referred to the Registrar:
Provided that no claim against a past member or the
estate of a deceased member shall be treated as a
dispute if the liability of the past member or of
the estate of the deceased member has been
extinguished by virtue of Sec. 32 or Sec. 63".
The claim of the appellant against the respondent No.1
is clearly covered by clause (c) of sub-section (1) above
and, therefore, could have been validly referred to the
Registrar under Section 48. The argument, however, is that
since the matter is covered by Section 40, Section 48 should
be held to be inapplicable. The High Court agreed and made
the following observations:-
896
"It is well-known proposition of law that when a
matter falls under any specific provision then if
must be governed by that provision and not by
general provisions (Generalia specialibus non-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
derogant)".
The High Court has in its judgement assumed that
whenever a specific remedy is made available in law the
other remedy, more general in nature, necessarily gets
excluded.
6. Validity of plural remedies, if available under the
law, cannot be doubted. If any standard book on the
subject is examined, it will be found that the debate is
directed to the application of the principle of election,
where two or more remedies are available to a person. Even
if the two remedies happen to be inconsistent,they continue
for the person concerned to choose from, until he elects one
of them, commencing an action accordingly. In the present
case there is no such problem as no steps under Section 40
were ever taken by the appellant. The provisions of Section
48 must, therefore, be held to be available to the appellant
for recovery of the loss.
7.Our view that a matter which may attract Section 40
of the Act will continue to be governed by Section 48 also
if the necessary conditions are fulfilled, is consistent
with the decision of this Court in Prem Jeet Kumar V.
Surender Gandotra and others, [1991] Supp. 2 S.C.C. 215,
arising under the Delhi Co-operative Societies Act, 1972.
The two Acts are similar and Sections 40 and 48 of the Bihar
Act and Sections 59 and 60 of the Delhi Act are in pari
materia. The reported judgement followed an earlier
decision of this Court in Pentakota Srirakulu v. Co-
operative Marketing Society Ltd., [1965] 1 S.C.R. 186. We
accordingly hold that the High Court was in error in
assuming that the application of provisions of Section 48 of
the Bihar Act could not be applied to the present case for
the reason that Section 40 was attracted.
8. So far the question of limitation is concerned it
is true that as in the Delhi Act, a period of six years was
fixed under the Bihar Act also by second Proviso under
Section 40 (1), which reads thus:-
"Provided further that no order shall be passed under
this sub-section in respect of any act or omission
mentioned in clauses (a), (b), (c) or (d) except within six
years of the date on which such act or omission
897
occurred."
It will be observed that the six years rule of
limitation, however, is limited for the purpose of section
40, and cannot govern the reference under section 48. The
relevant provision of section 48 is to be found in the
Proviso to section 48(1) which has been quoted above. For
determining its impact on the present case it is necessary
to examine the Proviso closely. Firstly, both the Proviso
and section 63 of the Act are concerned only where the claim
is against a member. Even if the Proviso be assumed to
govern a dispute between the society and its past or present
officer or servant it cannot come to the aid of the present
respondent No.1 because he was dismissed from service on
15.10.1966 and he was directed to deposit the disputed
amount within 30 days therefrom. The dispute was referred
for adjudication under section 48 on 12.12.1966 and the
reference was registered as Award Case No. 25 of 1968 on
03.08.1968. Thus all these steps were taken within a period
of two years. No reliance, therefore, can be placed on
either section 32 or 63. The case of Putnea Ministerial
government Officers’ Co-operative Society Ltd. (Supra) is
clearly distinguishable. The respondent there was a member
of the Society in question and had taken a loan which was
the subject matter of the dispute. As was pointed out by
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
the High Court the claim had stood barred by limitation and,
therefore, it was held that the reference was incompetent in
view of the Proviso to section 48(1). The High Court in the
present case was, in the circumstances, not entitled to
rely on this decision and its conclusions must be set aside
as being erroneous in law.
9. However, since in the judgement it is stated that
several other questions were also raised on behalf of the
respondent No.1 (who was the writ petitioner) which remained
undecided, the case requires reconsideration by the High
Court on the remaining points. Accordingly the impugned
judgement is set aside and the writ petition is remitted to
the High Court for fresh decision in accordance with the
observations in the present judgement. The appeal is
allowed but in the circumstances without costs.
U.R. Appeal allowed.
898