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Judgment
Bhimasankaram, J.—This is an application under Article 226 of the Constitution of India for the issue of a writ in the nature of a writ of prohibition directing the Deputy Registrar of Cooperative Societies Chittoor from proceedings with adjudication of claim No. 210/1950-51 on his file.
The Petitioner was the Secretary of the Chittoor Yendhi Charcoal Producers'' Co-operative Society Ltd., from 5-2-1942 to 12-4-1948. It is alleged by the society that during his tenure of office, he failed to bring into account all the amounts covered by1 bills passed by the City Firewood officer in favour of the society and cashed by him on its behalf during the period 11-6-44 to 2-6-1946. A claim was. therefore filed by the society against him u/s 51(1)(c) before the Deputy Registrar on 22-5-1950. The Petitioner objected to the investigation of the dispute by the Deputy Registrar on the ground that the claim was barred by time. The relevant provision in the rules framed under the Madias Co-operative Societies Act is Rule XV Sub-rule (1A) which is in these terms:
The period of limitation for referring a dispute touching the business of a registered society to the Registrar under Sub-section (1), of Section 51 of the Act shall be regulated by the provisions of Indian Limitation Act, 1908 (IX of-1908), as if the dispute were a suit and the Registrar a Civil Court:
Provided that a dispute between (i) the society or its committee, and (ii) and past committee, any past officer, past agent or past servant .......... shall, where the dispute relates to any act or omission on the part of the society or its committee, or any past committee, or any past officer, past agent or past servant be'' referred to the Registrar within '' two years from the date on which the act or omission with reference to which the dispute arose, took place.
The question for consideration in the present case, therefore, is, whether the period of limitation applicable to the claim is Article 95 of the Indian Limitation Act under the main provision stated above, or whether the proviso applies and the period of limitation is only two years. The Deputy Registrar held that the two years period of limitation applies only to cases of breach of duty and that all other cases are governed by the relevant provisions of the Limitation Act.
He was of the view that as the claim in question does not relate to neglect of duty and that as the action of the Secretary was clearly fraudulent, the period of limitation is three years, from 10-9-47, the date when the Senior Inspector, noticed or detected the suppressions on the part of the Ex-secretary i.e., on 10-9-1947. Ha therefore thought that the claim having been filed on 23-6-1950, was not barred by limitation. I find myself unable to accept this view. Ira order that the above proviso might apply, two conditions, it seems to me, are necessary (i) that there is a dispute between the society and the past officer and (ii) that it relates to any act or omission on his part. The words "Any act or omission" certainly comprehend in my opinion, not merely honest but also dishonest acts or omissions.
When there is a specific provision covering a dispute between the society and a past officer, which relates to any act or omission of the latter the general provision cannot obviously avail. It may be inconvenient that this should result from the language of the rule; but it seems to me there is no escape from the conclusion. I may further remark that even if the three years period, applies, it would date only from the date when the fact of fraud became known to the party wronged, who in this case, was the society and not the senior inspector. It does not appear from the record when the society can be said to have come to know of it is not inconceivable that the society might, have known the fraud much earlier, though it remained for the Senior Inspector to discover perhaps, the exact quantum of deficiency after an examination of the accounts. It is clear to me that the claim is obviously barred under the rule above cited.
It is objected on behalf of the respond-dent that I should not interfere by way of a writ of prohibition because, under the appropriate provisions of the Act, there are remedies available by way of appeal and revision to certain authorities mentioned therein. I do not think that such provisions debar me from issuing a writ of prohibition in such a case as this. As has been observed by their Lordships Satya-narayana Rao and Rajagopalan in Sri Lakshmindra Theertha Swamiar of Sri Shirur Mutt and Another Vs. The Commissioner, Hindu Religious Endowments, Madras and Others, at P. 578: AIR 1952 Mad 613 at P. 631) (A).
In deciding the question, whether a writ of prohibition should issue or not, the existence of an alternative remedy is, in our opinion, an irrelevant consideration when the complaint is that an inferior tribunal is exceeding its jurisdiction or is assuming a jurisdiction not vested In it by law. If the tribunal is permitted, to exercise that jurisdiction which is objected to, if it exercises it wrongly, the mischief would be done, before the alternative remedy is availed of. It is unnecessary to insist upon a party complaining that he should first suffer and submit himself to the jurisdiction which is being wrongly exercised or is wrongly exceeded and then take advantage of the alternative remedy.
Even in England the powers of the Court seem to be quite as wide as under Article 226 of our Constitution. Their Lordships quote with approval a passage from Halsbury, Volume IX page 822 (Hailsbum edition) wherein the position in England is -described thus:
The Court, in deciding, whether or not to grant a writ of prohibition, will not he fettered by the fact that an alternative remedy exists to correct the absence or excess of jurisdiction or an appeal lies against such absence or excess. Similarly the fact that an appeal on the merits of the case has already failed, or that the party applying for prohibition has himself initiated the proceedings in the inferior court, is not material to the decision of the Court, to grant or to refuse the writ.
I am bound by the expression of opinion in the case cited, apart from the fact that I find myself in agreement with it.
It is next contended vehemently by the learned Government Pleader that there is no initial lack of jurisdiction in the Deputy Registrar to entertain the claim and that I should not interfere at this stage. I should think, however that all claims not made within the period of limitation provided there for by statute or rules having statutory force should be dismissed. Where any special law prescribes a period of limitation different from that prescribed therefore by the first schedule of the Indian Limitation Act, the provisions of Section 3 of that Act apply. That section embodies a statutory obligation on all authorities entertaining Civil claims to which the Limitation Act or any other provision as to Limitation applies in the absence of an express provision to the contrary (Vide Section 29 of the Limitation Act).. Indeed it has to been held by their Lordships of the Privy Council in AIR 1949 239 (Privy Council) at p. 10: AIR 1949 PC 239 at p 242) (B) that a question of limitation involves a question of jurisdiction.
The cases of Babu Ram and Another Vs. Munna Lal and Others, and Hari Bhikaji v. Naro Vishvanath, ILR 9 Bom 432 (D) may be mentioned as cases in which a subordinate court by its own erroneous decision (erroneous that is in the view of the High Court), in the one case on a point of limitation and in the other on a question of res judicata invested itself with a jurisdiction which in law it did not possess and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such a result.
Further it is my view that .if on the facts it is clear that this Court would "interfere ultimately with the order that might emerge from proceedings taken under the Act, it is certainly not. only proper but necessary for this Court to in prefer earlier by way of a writ of prohibition. If these are all the facts that should ultimately be found, then surely the order of the Deputy Registrar confirming the award or the order of the Local Government confirming the former would certainly be liable to be quashed either on the ground of error apparent on the face of the record or on the ground that the claim should have been dismissed in liming because it was obviously barred under the statutory rules in force. I am of opinion therefore that the Deputy Registrar should be prohibited from taking any further action in respect of this claim. A writ of prohibition will therefore issue, accordingly. Having regard to the circumstances of the case, I think I should not make any order as to costs.