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Judgment
D. Urugesan, J.—This writ appeal raises an interesting and at the same time an important issue, as to whether an award passed u/s 90(2)(b)
of The Tamil Nadu Co-operative Societies Act, 1983 (hereinafter referred to as ""the Act"") could be revised by the Registrar in exercise of suo
motu revisional power u/s 153 of the Act.
To answer the above issue, following few facts are necessary:
(a) The appellant viz., M/s. T.K. & Sons was allotted a plot, in K-7 Unit by the fifth respondent society on 23.08.1973 and a sale deed was also
executed and registered in favour of the appellant on 04.08.1988. In the mean time, the society also announced proposals for allotment of some
other developed plots to the members on 29.11.1975. In response to the said announcement, the appellant company expressed their willingness to
purchase one plot. Pursuant to the said request, the society allotted plot No. 12 to the appellant on 30.04.1983. Subsequently on 25.02.1986, the
society cancelled all the allotments made during the year 1979-1982 and constituted a sub-committee for finalising the allotments and on
29.04.1987, the allotment of Plot No. 12 in favour of the appellants was cancelled. A dispute was raised and the same was referred to the
Arbitrator u/s 90(1) of the Act for adjudication. The Registrar in exercise of the power u/s 90(2)(b) of the Act transferred the reference to the
Arbitrator/fourth respondent viz., The Special Officer, Tamil Nadu Auto Transport Drivers Industrial Co-Operative Society, Chennai, who passed
an award on 05.04.1995 and the operative portion of the award reads thus:
ORDER:- The defendant society do allot such other plot as may be found available to the petitioner for expansion or diversification of Industries
on payment of value as may be fixed by the competent authority of plots as a priority category. ....
(b) As far as 5th respondent society is concerned, the said award has become final, as the said award has not been questioned further.
(c) on 26.11.1996, the Registrar of Industrial Co-operatives, the second respondent issued summons to the appellant exercising suo motu power
of revision u/s 153 of the Act informing and questioning the appellant, as to why the award should not be set aside. In response to the above, the
appellant submitted their detailed objections dated 17.12.1996. As the objections are relevant for the disposal of this writ appeal, we are inclined
to extract hereunder the relevant portion of the objections:
(I) The 1st and 2nd defendants have received summons dated 26.11.1996 for a suo motu enquiry in exercise of the powers of revision u/s 153(1)
of the Act. These defendants submit that the Dispute covered by the petition filed u/s 90(1) (b) of the TNCS Act against the Vyasarpadi Co-
operative Industrial Estate and that therefore when the said society is aggrieved by the award was entitled to prefer an appeal u/s 152(1) of the Act
to the appellant authority. Therefore, the award being an appealable decision against which the respondent society was entitled to file an appeal to
the Tribunal, the exercises of revisional power u/s 153(1) of the Act does not arise and such powers cannot be exercised in respect of the award
dated 05.04.1995 passed by the Arbitrator in ARC. No. 1/94-95. The defendants respectfully submits that the Honourable Authority who has
sent the summons dated 24.11.1996 may be pleased to drop further enquiry proposed to be held in regard to the award.
...
...
(II) These defendants further submits that the award of the Arbitrator passed u/s 90 of the Act is not liable to be examined afresh and the decision
being an award the question of producing relevant documents, records and other facts does not at all arise at this stage. Further, these defendants
having accepted the award, they cannot be expected to file an affidavit as to the legality or the validity of the award passed by the arbitrator. These
defendants therefore, respectfully submit that the award or the arbitrator has become final and valid and until the said award is set aside in an
appeal file u/s .152 of the Act, the said award is binding on both the parties to the dispute, namely these defendants and the respondent Co-
operative Industrial Estate.
(III) Subject to the above objections as to the exercise of the revisional powers u/s .153(1) of the Act these defendants submit the following
objections on the points mentioned in the summons. These defendants further submit that without prejudice to the rights and claims to challenge the
legality and propriety of the issue of summons for purposes of exercising the revisional powers u/s .153(1) of the Act, that they maybe permitted to
submit a detailed statement and objections in regard to the merits of the case. The examination of the legality of the award passed by the Arbitrator
under the powers vested in the authority is unnecessary and uncalled for as the judgment passed by the Arbitrator ARC 2/94-95 dated
05.04.1995 was duly, legally constituted body, vested with full powers under the T.N.Co-Operative Societies Act. The Judgment was passed on
05.04.1995 and received by us on 22.04.1995. The award of the arbitrator is valid, binding, final and enforceable....
(d) However, by order dated 11.04.1997, the Registrar, Industrial Co-operatives, set aside the award of the Arbitrator and also cancelled the
allotment of Plot No. 12 made in favour of the appellant. The said order was questioned by the appellant before this Court unsuccessfully, giving
rise a cause for this writ appeal.
We have heard Mr. R.Thiagarajan, learned Counsel appearing for the appellant, Mr. R.Thirugnanam, learned Special Government Pleader for
the respondents 1 to 3 and Mr. A.Amalraj, learned Counsel for the fifth respondent. Though the name of the fifth respondent, the Arbitrator was
shown in the cause list, none appears representing him.
We have carefully considered the rival contentions. The bone of contention of the learned Counsel for the appellant is that in as much as the
award passed by the Registrar, in exercise of the power u/s 90 of the Act has become final, the Registrar would have no jurisdiction to suo motu
revise the award. He would also submit that the Registrar while exercising his suo motu revisionary power u/s 153 of the Act cannot act as a
superior officer to interfere with the award passed by the Arbitrator, who is nonetheless to be a Registrar while exercising powers u/s 90 of the
Act.
To determine the issue, the following few provisions of the Tamil Nadu Co-Operatives Societies Act, 1983 and The Tamil Nadu Co-Operative
Socities Rules, 1988 are referable:
a. 90. Disputes. - (1) If any dispute touching the constitution of the board or the management or the business of a registered society (other than a
dispute regarding disciplinary action taken by the competent authority constituted under Sub-section (3) of Section 75 or the Registrar or the
society or its board against a paid servant of the society) arises-
(a) ....
(b) between a member, past member or person claiming through a member, past member or deceased member and the society, its board or any
officer, agent or servant of the society, or
(c) .....
(d) ........ such dispute shall be referred to the Registrar for decision
(2) The Registrar may, on receipt of such reference,-
(a) decide the dispute himself or transfer it for disposal to any person subordinate to and empowered by him; or
(b) subject to such rules as may be prescribed, refer it for disposal to an arbitrator or arbitrators.
b. 151. Co-Operative Tribunal.- (1) The Government may constitute as may Tribunal as may be necessary for the purpose of this Act.
(2) Each Tribunal shall consist of one or more persons possession such qualifications as may be prescribed:
Provided that at least one person shall be a judicial officer not below the rant of a Su-ordiante Judge.
(3) Each Tribunal shall have such jurisdiction and over such area, as the Government may, by notification, from time to time, determine.
c. 152. Appeals. - (1) Any person aggrieved by -
(a) any decision or award passed or order made or proceedings taken under Sub-section (1) of Section 87, Sub-section (2), Sub-section (3) or
Sub-section (4) of Section 90, Section 118, Section 119, Section 143, Section 144 or Section 167; or
(b) any award of an arbitrator or arbitrators under Sub-section (2) or Sub-section (3) of Section 90; or
(c) any award of an arbitrator u/s 100, may appeal to the Tribunal:
Provided that nothing contained, in Clause (a) or Clause (b) of this Sub-section shall apply to -
(i) any decision, order or award under Sub-section (2), Sub-section (3) or Sub-section (4) of Section 90, in respect of any matter relating to, or in
connection with, the constitution of a board including any election thereto; or
(ii) any decision, or award under Sub-section (2), Sub-section (3) or Sub-section (4) of Section 90, in respect of any matter relating to, or in
connection with any matter not being a money claim;
(iii) any order of transfer, reference, withdrawal or re-transfer of a dispute under Sub-section (2) or Sub-section (3) of Section 90.
(2) (a) .....
(3) Any appeal under Sub-section (1) or Sub-section (2) shall, subject to the other provisions of the Act, be preferred within sixty days from the
date of communication of the decision, order, award, refusal, registration or approval complained of, but the appellate authority may admit an
appeal preferred after the said period of sixty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said
period.
(4) ....
(5) Subject to the provisions of Section 153 and 154, the decision or order of the appellate authority on appeal shall be final.
(6) ...
(7) ....
d. 153. Revision. - (1) The Registrar may of his own motion or on application, call for and examine the records of any officer subordinate to him or
of the board of any officer of a registered society or of the competent authority constituted under Sub-section (3) of Section 75 and the
Government, may of their own motion or on application, call for and examine the record of the Registrar, in respect of any proceedings under this
Act or the rules or the by-laws not being a proceeding in respect of which an appeal to the Tribunal is provided by Sub-section (1) of Section 152
to satisfy himself or themselves as to the regularity of such proceedings , or the correctness, legality or propriety of any decision passed or order
made therein; and, if, in any case, it appears to the Registrar or the Government that any such decision or order should be modified, annulled,
reversed or remitted for reconsideration, he or they may pass orders accordingly:
Provided that every application to the Registrar or the Government for the exercise of the powers under this Section shall be preferred within
ninety days from the date on which the proceedings, decision or order to which the application relates was communicated to the applicant.
(2) to (4) ....
There is no controversy that a dispute arose between the appellants and the society following the cancellation of allotment of Plot No. 12.
Factually, such dispute was referred to the Registrar of Co-op. Societies u/s 90(1) of the Act. As to whether such dispute could be the subject
matter of reference or not, is not a question now before us and therefore, we are not inclined to answer the said question.
On receipt of such a reference, in terms of Sub-section (2) of 90 of the Act, the Registrar should deal with such reference. There are three
options left to the Registrar. In terms of Clause (a) of Sub-section (2) of Section 90 of the Act, he may decide the dispute by himself. In terms of
the very same provision, he may also transfer such a dispute for disposal to any person subordinate to and empowered by him. In the event, if he
does not opt to follow the above two, in terms of Clause (b) of Sub-section (2) of 90 of the Act, he may refer the dispute for disposal to an
Arbitrator or Arbitrators.
Factually, in the case on hand, he referred the dispute under Clause (b) of Sub-section (2) of Section 90 of the Act to the Special Officer, Tamil
Nadu Auto Transport Drivers Industrial Co-Operative Society, who passed the award in favour of the appellants. The question is whether the
Registrar, who is empowered to decide the dispute by himself, but rather referred the same to an Arbitrator, could act as a revisional authority
either on application or suo motu to revise an award in exercise of the power u/s 153 of the Act?
Section 153 of the Act, of course, empowers not only the Registrar, but also the Government to revise an order, either on their own motion or
on application. As we are concerned with the impugned order, which was passed by the Registrar in exercise of the suo motu power u/s 153 of
the Act, we would refer to the relevant portion of Section 153 of the Act, concerning the power of the Registrar alone. By that section, the
Registrar, of course, has got power on his own motion to call for and examine the records of any officer subordinate to him or of the board or any
officer of a registered society or of the competent authority constituted under Sub-section 3 of Section 75 of the Act and pass order modifying,
annulling, reversing, or remitting the order for reconsideration and also he may pass orders accordingly. Such a revisionary power would be
available to the Registrar, only in respect of any proceedings under the Act or the Rules or Bye-laws, not being the proceedings in which an appeal
to the Tribunal is provided by Sub-section (1) of Section 152 of the Act. The pre-condition for exercise of the power of revision is, in respect of
proceeding, where no appeal is provided u/s 152 of the Act. The learned Special Government Pleader submitted that the award is not appealable
and hence, the Registrar is justified in exercising the power of revision. The first question to be considered is as to whether an award passed by an
Arbitrator or the Arbitrators referred under Sub-section (2) of Section 90 of the Act is appealable u/s 152 of the Act. In terms of Clause (b) of
Sub-section (1) of Section 152 of the Act, such an appeal is provided to the Tribunal constituted u/s 151 of the Act. However, Clause (ii) of
proviso to Sub-section (1) of Section 152 of the Act contemplates that nothing contained in Clause (b) of the said Sub-section shall apply to any
decision, or order or award under Sub-section (2) of Section 90 of the Act in respect of any matter relating to, or in connection with, any matter
not being a money claim. In view of the said proviso, in respect of the cancelation of allotment, which is the subject matter of reference resulting in
an award under Sub-section (2) of Section 90 of the Act, no appeal could be made to the Tribunal u/s 152 of the Act. Hence, in the case, where
no appeal is provided in respect of an award.
This leads us to the next question, as to whether the award passed under Sub-section (2) of Section 90 of the Act, even in the absence of any
provision of appeal to challenge the same could be revised u/s 153 of the Act. The power u/s 90 of the Act to entertain a reference and decide the
dispute exclusively vests with the Registrar. Of course, in terms of Clause (a) of Sub-section (2) of Section 90 of the Act, he may decide the
dispute himself and also transfer such dispute to any person subordinate to and empowered by him. He may also refer the dispute to an Arbitrator
or the Arbitrators as per Clause (b) of Sub-section (2) of Section 90 of the Act. The power of revision is available to the Registrar to call for,
examine the records of any officer subordinate to him or of the board or any officer of a registered society or of the competent authority
constituted under Sub-section (3) of Section 75 of the Act.
(i) Sub-section (19) of Section 2 of the Act defines ""officer"" as under:
(19) ""Officer"" includes a president, vice-president, managing director, secretary, assistant secretary, member of board and any other person
empowered under the rules or the bye-law to give directions in regard to the business of the registered society;
(ii) Sub-section (23) of Section 2 of the Act defines, ""Registrar"" as under:
(23). ""Registrar"" means an officer of the Government appointed to perform the duties of a Registrar of Co-operative Societies under this Act, and
includes any other officer of the Government or any officer of any body corporate owned or controlled by the Government on whom all or any of
the powers of a Registrar under this Act have been conferred u/s 3;
Both the above Sub-sections do not include Arbitrator or Arbitrators. An officer while acting as an Arbitrator , that too directed by the
Registrar himself to discharge the function cannot be considered to be an officer subordinate to the Registrar or an officer, who is entitled to act
under the provisions of the Act and the Rules made thereunder to discharge his function relating to the society. While an officer acts as an
Arbitrator, he cannot be considered to be an officer subordinate to the Registrar and the award passed by such an Arbitrator cannot be brought
u/s 153 of the Act, as the said provision applies to only in respect of examination of the records of an officer subordinate to the Registrar or of the
board or any officer of a registered society or of the competent authority constituted under Sub-section (3) of Section 75 of the Act, which relates
to ""constitution of common cadre of service"". Hence, in our opinion, the award passed by an Arbitrator under Clause (b) of Sub-section (2) of
Section 90 of the Act is not a revisable by the Registrar himself even when there is no provision of appeal u/s 152 of the Act to challenge the said
award is provided. Hence, we are of the considered view that the suo motu order of revision passed in revising the said award is illegal and
unsustainable in law.
For the reasons stated supra, the writ appeal is allowed and the Order dated 28.02.2005 made in W.P. No. 10565 of 1997 is set aside and
consequently writ petition is allowed and the impugned order in reference No. 108786/IGS/96 dated 11.04.1997 in the writ petition stands set
aside. No costs. Consequently, connected miscellaneous petitions are closed.