Nawda Thana Co-Op. Agricultural Marketing Society v. W.B Co-Op. Tribunal & Ors.

1. The petitioner, Nowda Thana Co-operative Agricultural Marketing Society Ltd. (hereinafter referred to as the said Society), is one incorporated and constituted under the West Bengal Co-operative Societies Act, 1973 (hereinafter referred to as the said Act) and at the relevant time, the respondent No. 6, Birendra Nath Bajpayee, was its Secretary. Thereafter, on the basis of certain allegations against the said respondent No. 6, the Managing Committee of the said Society, took decision and passed resolution to the detriment of the said respondent No. 6.

2. Against such action, the respondent No. 6 filed a dispute under S. 86 of the said Act, before the Assistant Registrar, Co-operative Societies, Murshidabad and by an award dated 28th July 1978, the Arbitrator concerned, declared the resolution of the Managing Committee, relating to the no confidence motion against the respondent No. 6 or the action as proposed to be taken, to be illegal and void inter alia on the ground that the notice as issued by the Chairman of the said Society on diverse dates, were Illegal.

3. Against such determination, the said Society which was required to file necessary appeal on 6th October 1978, filed the same on 18th October 1978. Since the appeal in question was filed out of time they made an application for condonation of delay, after offering their explanation and contending that they wore prevented by just and sufficient cause in not filing the appeal in time. So, in fact and admittedly, there was 12 days delay in presenting the appeal and the Tribunal hearing the said appeal, did not entertain the same on the ground that under the provision of the said Act, it had no power, authority or jurisdiction to enlarge time.

4. It is against such determination, the present Rule was obtained on 21st February 1979. At the time of issuing the Rule no interim order was granted. But liberty was granted to ask for appropriate interim orders on the same application, after complying the Rules. On such compliance, respondents Nos. 2, 3, 4 and 5 have appeared through Mr. N.K Bhattacherjee. The respondent No. 6 has appealed through Mr. S.N Choudhury.

5. At the time of consideration of the prayer for appropriate interim orders, a point arose and which will have to be decided here whether the Tribunal hearing the appeal under the said Act, has power to condone delay or entertain men appeals which are filed out of time? While on this question, two sections of the said Act, will have to be looked into and they are:—

“133(2)—The Tribunal shall hear such appeals from orders, decisions or awards made under the Act, as are specified in the Third Schedule, lying to the Tribunal and shall exercise all powers conferred upon an Appellate Court by Order XLI in the First Schedule to the Code of Civil Procedure, 1908.

134(2)—The provisions of the Limitation Act 1963, shall not apply to an appeal referred to in sub-section (1)”

The appeal to the Tribunal as filed under S. 134 and sub-s. (2) as mentioned above, lays down that the provisions of the Limitation Act, 1973 shall not apply to an appeal referred to in sub-s. (1) of S. 134. Section 133 makes provisions for the establishment or constitution of Co-operative Tribunals and sub-s. (2) therein provides that the Tribunal should hear such appeals or orders, decisions or awards made under this Act, as are specified in the Third Schedule as lying to the Tribunal and shall exercise all the powers conferred upon an Appellate Court by Order XLI in the First Schedule to the Code of Civil Procedure, 1908.

6. There is no doubt that the Tribunal concerned relied on the provisions of S. 134(2) and overlooked the provisions in S. 133(2) of the said Act and came to the conclusion as indicated above.

7. Thus, in the said Act, there are two provisions available, one of which lays down that Limitation Act would not apply, but the other states that the provisions of Order XLI of the Code of Civil Procedure, which deals with appeals from Original Decrees, would apply. The provision under Order XLI Rule 3A, is to the following effect:—

“(1) When an appeal is presented after the expiry of the period of limitation specified therefor it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.

(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be

(3) Where an application has been made under sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filled so long as the Court does not after hearing under rule 11, decide to hear the appeal.”

Rule 3A makes it explicity clear that when an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by an affidavit setting forth the fact on which the appellant relied, to satisfy the Court that he had sufficient cause for not preferring the appeal. On the basis of the argument as advanced at the Bar now, we shall have to determine whether, even in spite of specified provisions in S. 134(2) regarding the non-applicability of the Limitation Act, by appreciating power under S. 133(2) as mentioned, if the Tribunal was justified in not entertaining the appeal.

8. In case the language being of doubtful import or two interpretations being possible that construction or interpolation which favour the right to sue may be adopted is the general rule of construction. When in the instant case two such inconsistent provisions are there in the Statute, so in my view, apart from the determination as I shall make on the arguments made at Bar, I am of the view that such interpretation which would finally decide the maintainability an action in appeal should be given and as such, even in spite of provisions in S. 134(2), the Tribunal would have power to condone the delay, on appreciation of the power in S. 133(3) of the said Act.

9. It should be noted that although Mr. Bhattcherjee appeared for the authorities under the said Act, he in his usual fairness, referred to Article 254(2) of the Constitution of India and more particularly to the provisions thereunder, ann appropriately submitted that when a Central Law meaning thereby the provisions of the Code of Civil Procedure, has subsequently been made, and thereby some inconsistency has been created so far as the said law, meaning thereby the said Act, the provisions of the Central law, meaning thereby the provisions of the Code of Civil Procedure, should receive preferences. He pointed out that the provisions of the said Act was incorporated in or about 25th September 1973 and those of Civil Procedure Code came into force on 1st February 1977. In support of his submissions Mr. Bhattacherjee referred to the determination in Ukhakhola v. State of Maharastra, AIR 1963 SC 1531, Zaverbhat Amatdas v. State of Bombay AIR 1954 SC 152 amongst others. Apart from the cases he made a reference to the determination of this Court in the case of Nirmal Kumar Banerjee v. Panthati Co-operative Bank Ltd. AIR 1977 Cal 246. This decision also in my view indirectly supports the view which I have taken, viz., that Limitation Act applies so far as the Tribunals under the said Act are concerned. Apart from all these, I am also of the view that for ends of justice, such Tribunals as are constituted to hear the appeals under the said Act should have also power to condone the delay in terms of the provisions of S. 133(2), although such power has been sought to be curtailed under S. 134(2).

13. In view of the above by consent of parties I treat this Rule as on day's list and have the same disposed of with the observation as made above.

11. It must be recorded that for the view which I have taken, I have not decided the points on merits and all points as taken, are kept open. The Tribunal will now deal with and decide the case on condonation of delay in accordance with law.

12. I request the learned Registrar, Appeliete Side to supply a certified copy of this order at an early date, on necessary application being made.

Rule disposed of.