Allowed

The Karot Agriculture Cooperative Society Ltd. v. State of Hp and Others

Himachal Pradesh HC7 Nov 2019CWP/3052/2019

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh allowed this writ petition, quashing an order by the Special Secretary (Co-operation) that allowed a revision petition which was admitted to be time-barred under the category under Section 94 of the Himachal Pradesh Co-operative Societies Act, 1968.

What did the court decide?

Impugned order dated 03.06.2019 allowing the revision petition is quashed and set aside. Parties to bear their own costs.

The Karot Agriculture Cooperative Society… — Cooperative Societies | Himachal Pradesh HC (2019)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No.3052 of 2019.

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Date of decision: 07.11.2019.

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The Karot Agriculture Cooperative Society Ltd. …..Petitioner.

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Versus

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State of Himachal Pradesh and others …..Respondents.

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Coram

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon’ble Mr. Justice Anoop Chitkara, Judge.

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*Whether approved for re*	*porting?¹Yes*
For the Petitioner :	Mr. Surinder Saklani,	Advocate.
For the Respondents:	Mr. Ashok Sharma, General with Mr. Vin Additional Advocate	Advocate od Thakur, General,
	Mr. Bhupinder Th	akur, Ms.
	Svaneel Jaswal,	Deputy
	Advocate Generals	and Mr.
	Ram Lal Thakur,	Assistant
	Advocate Gener	al, for
	respondents No.1 to	3.
	Mr. Lalit K. Sharma, for respondent No.4.	Advocate,

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Tarlok Singh Chauhan, Judge (Oral)

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Aggrieved by the exoneration of private respondent No.4 in an inquiry conducted under Section 69(1) of the Himachal Pradesh Co-operative Societies Act,

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1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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1968, (for short ‘the Act’) by the Assistant Registrar Cooperative Societies, Hamirpur, the petitioner filed an appeal under Section 93(2) of the Act which was allowed by the Joint Registrar (Marketing) Co-operative Societies, Himachal Pradesh, vide order dated 25.08.2009. However, this decision was challenged by respondent No.4 by way of revision under Section 94 of the Act before the Special Secretary (Co-operation) to the Government of Himachal Pradesh, but the same was dismissed vide order dated 04.01.2010 on the ground of maintainability and it was observed as under:

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“This revision application has been filed under Section 94 against the order of lower Court passed in an appeal under Section 93 of the Act. As per discussion above, the revision application is beyond the jurisdiction of this court and not to be adjudicated here. Therefore, without going into the merits, revision petition is disposed off. The appellant is at liberty to take recourse to other appropriate forum to agitate the impugned order of lower court.”

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Aggrieved by the aforesaid order, respondent No.4 approached this Court by filing CWP No.1306 of 2010

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and the same came to be allowed by the learned Single

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Judge of this Court vide order dated 28.06.2016 by observing as under:

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“4. From perusal of bare provision of Section 93(1) of the Act, it is evident that petitioner was pursuing his remedy before wrong Forum. Confronted with the situation, learned counsel for petitioner submits that petitioner was agitating the matter before authorities under bonafide belief by acting upon bonafide advice of legal experts and he has further prayed that present petition be permitted to be withdrawn with liberty to approach appropriate Court /forum for redressal of his grievances.

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5. In view of the above, present writ petition is disposed of as withdrawn with liberty to petitioner to approach appropriate Forum as available to him in accordance with provisions of the Act and respondents are also entitled to contest the same in accordance with law. Petitioner may file an appropriate application to avail benefit provisions of the Indian Limitation Act including Sections 5 and 14 of the said Act. The said application shall be decided by concerned authority on its own merit definitely by taking into consideration time spent in pursuing the matter in wrong Forum/Court.”

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It is not in dispute that even though respondent No.4 did not file any separate application under Sections 5 and 14 of the Limitation Act, yet the revision petition filed

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by him came to be allowed by respondent No.2 vide its order dated 03.06.2019.

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Now the moot question is whether such course could have been adopted by respondent No.2 especially when the petition filed by respondent No.4 was admittedly time barred.

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Section 94 of the Act under which the petition had been filed provides for 90 days’ period of limitation from the date of the communication of the order sought to be reviewed/revised and reads as under:

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“ 94. Review and Revision:-

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(1) The State Government except in a case in which an appeal is preferred under section 93 may call for and examine the record of any inquiry or inspection held or made under this Act or any proceedings of the Registrar or of any person subordinate to him or acting on his authority and may pass thereon such orders as it thinks fit.

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(2) The Registrar may at any time:-

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(a) review any order passed by himself; or

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(b) call for and examine the record of any inquiry or inspection held or made under this Act of the proceedings of any person subordinate to him or acting on his authority and if it appears to him that any decision,

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order or award or any proceedings so called or should for any reason be modified, annulled or reversed, may pass such order thereon as he thinks fit;

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Provided that before any order is made under subsection (1) and (2), the State Government or the Registrar as the case may be shall afford to any person likely to be affected adversely by such orders an opportunity of being heard.

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“Provided further that every application under subsection(1) and (2), to the State Government or the Registrar, as the case may be shall be made within ninety days from the date of the communication of the order sought to be reviewed or revised.”

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The section empowers the State Government and the Registrar to review and revise certain orders or proceedings made or held under this Act.”

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As regards the applicability of Limitation Act to the proceedings under the H.P. Co-operative Societies Act and the further question whether a time barred appeal/petition filed without a separate application for condonation of delay can be entertained or not, is no longer res integra in view of the authoritative pronouncement of a learned Division Bench of this Court in The Kailash

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District Co-operative Marketing and Supply

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Federation Ltd., Dhalli vs. Sher Singh Mehta and

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others, AIR 1988 HP 1 , wherein it was observed as under:

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“ 5. Now the jurisdiction which vested in the Registrar to condone the delay in filing the appeal under Section 5 of the Limitation Act certainly could not be invoked in a case of this type where the appellant had conceded its inability to show sufficient cause for not filing the appeal within time. In fact no prayer can be said to have been made by the appellant seeking condonation of delay in filing its appeal and in the absence of such a prayer, the Registrar in our view had certainly no jurisdiction to condone the delay under Section 5 of the Limitation Act, which confers a discretionary jurisdiction in the appellate authority to condone delay but only after it is satisfied that there was sufficient cause for condoning such delay. In the instant case, therefore, the Registrar in our view had no option but to dismiss the appeal in terms of Section 3 of the Limitation Act.

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7……..The order passed in a time barred appeal by the Registrar under Section 93(2) of the Act is directly under challenge in these proceedings and it is certainly for this court to examine if the order suffers from any error of law or other infirmity so as to call for interference by this Court in exercise of its writ jurisdiction. As earlier observed, the order of the Registrar allowing the appeal of the appellant under Section 93(2) of the Act suffers from an apparent error of law inasmuch as the Registrar had

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entertained a time barred, appeal without any prayer being made to him for condoning the delay much less a sufficient cause being shown to him for such condonation. He had, in the circumstances, no option but to dismiss the appeal as time barred in terms of the provisions of S. 3 of the Limitation Act. Even if it be assumed that! he acted within his jurisdiction in entertaining 'and allowing the appeal, he exercised the jurisdiction in complete violation of law and his order, therefore is totally unsustainable. The learned single Judge had rightly quashed that order.”

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The Hon’ble Supreme Court in Ragho Singh vs. Mohan Singh, (2001) 9 SCC 717, V.M. Salgaocar and Bros. vs. Board of Trustees of Port of Mormugao and another, (2005) 4 SCC 613, Noharlal Verma vs. District Cooperative Central Bank Ltd., Jagdalpur (2008) 14 SCC 445 and Sneh Gupta vs. Devi Sarup and others (2009) 6 SCC 194 , has held that if a proceeding is initiated after expiry of period of limitation, it has to be dismissed, even though no such plea has been raised or defence has been set up. Further, it was held that the limitation goes to the root of the matter and if suit, appeal or application is barred by limitation, the Court or Adjudicating Authority has no jurisdiction, power or authority to entertain such suit, appeal or application and

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to decide it on merits. Lastly, it has been held that in absence of any application for condonation of delay, the Court has no jurisdiction to proceed with the matter and unless the delay is condoned, there can be no proceeding which can be decided on merits.

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In view of the aforesaid exposition of law, respondent No.2 had no jurisdiction or authority to even entertain, much less decide the revision petition that was admittedly time barred and was not even accompanied by a separate application for condonation of delay.

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In view of the aforesaid discussion and for the reasons stated above, we find merit in this writ petition and the same is allowed. Consequently, the impugned order passed by respondent No.2 on 03.06.2019 (Annexure P-9) is quashed and set aside, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.

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(Tarlok Singh Chauhan) Judge

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(Anoop Chitkara) Judge

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07.11.2019. (krt)

The Karot Agriculture Cooperative Society Ltd. v. State of Hp and Others

Case brief

What is this about?

What did the court decide?

The Karot Agriculture Cooperative Society Ltd. v. State of Hp and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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