Allowed

Ram Bilash Acharya v. the State of Bihar and Ors.

Patna HC1 Oct 2012CWJC/8236/2003

Case brief

AI extract

What is this about?

The Patna High Court allowed a writ petition and quashed a judicial reference falsely forwarded to a Subordinate Judge. The Court held that the District Judge lacked jurisdiction under section 48(8) of the Bihar Cooperative Societies Act to delegate the matter and directed the Registrar to adjudicate the dispute on the merits within three months.

What did the court decide?

Annexure-1 (reference answered by Subordinate Judge) quashed. Writ Application allowed with direction to Registrar to hear parties and decide dispute within three months.

Ram Bilash Acharya Vs the State of Bihar and Ors. — Cooperative Societies | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 8236 of 2003

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====================================================== Ram Bilash Acharya, S/o Late Ram Gulam Acharya, R/o Mohalla – Rajeev Nagar, Road No. 14, P.S. – Digha, District - Patna .... .... Petitioner/s Versus The State Of Bihar & Ors . ... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Ishwari Singh For the Respondent/s : Mr. (AAG1) ====================================================== CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI ORAL ORDER

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A long drawn legal battle has been going on between the parties with regard to the so called illegal allotment in favour of one Prem Chandra Mishra of a piece and parcel of land, belonging to the cooperative society, which was identified for the use of the members, for common facility.

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08. 01.10.2012

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The present petitioner is supposed to be a power of attorney holder, which has been seriously disputed by learned senior counsel appearing for the Cooperative Society, namely, Mithila Sahkari Grih Nirman Samitte. The Court will not get into that controversy looking at the nature of the order, which is going to be passed and it will be open to the society to raise that question before the Registrar of cooperative society.

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The litigation was originally brought before the Registrar, Cooperative Society, who sent the matter for

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Patna High Court CWJC No.8236 of 2003 (8) dt.01-10-2012 2/7

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adjudication to Joint Registrar. Vide his letter no. 931, dated 15.12.2002 the Joint Registrar in exercise of power under section 48 (8) of the Bihar Cooperative Societies Act, 1935 made a reference. Section 48 (8) reads as follows:

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“(8) The Registrar may where it appears to him advisable, either of application or of his own motion, state a case and refer it to the District Judge for decision, and the decision of the District Judge shall be final.”

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The terms of reference which has been taken note

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of in Annexure – 1, which is the subject matter of challenge

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is also reproduced hereinbelow:

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“(i) Whether receiver can be appointed?

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(ii) Whether the Court of Joint Registrar is competent to pass order regarding appointment of receiver?

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(iii) Who is the owner of disputed plot : - Whether the disputed plot is the property of co-operative society or the property of the person who has constructed the house.”

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The reference was registered as Miscellaneous

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Case No. 20 of 2000 / 10 of 2001. The reference (Annexure- 1) was answered by the Court of 4^th Subordinate Judge, Patna and the same was endorsed by the District Judge, Patna to the Joint Registrar, Cooperative Society for adjudication on the opinion expressed on the terms of reference. The petitioner

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Patna High Court CWJC No.8236 of 2003 (8) dt.01-10-2012 3/7

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decided to challenge the reference on many a grounds. The primary ground being that the District Judge had no authority to delegate or direct the Subordinate Judge to answer the reference so made by the Joint Registrar. The reference had to be answered at the level of the District Judge as provided for in section 48 (8). The object of the section is to seek advise on the legal questions which could be vexing the adjudicatory authority under the Cooperative Societies Act. The same could not be delegated to any Subordinate Authority below the designated authority, who was required to answer the questions so referred.

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The alternative is that the reference itself seems to be abdication of the power of the Joint Registrar or the Registrar in deciding the lis of the matter by trying to seek findings of fact as would be evident from reading of reference no. 3. It virtually has the effect of getting the main issue decided by way of reference, which will hardly leave any scope for the Joint Registrar or the Registrar to apply himself and come out with his understanding on the dispute. In other words, the Register or the Joint Registrar abdicated their power of adjudication and were left with the act of endorsement on the answered reference.

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Learned counsel for the petitioner is correct in

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Patna High Court CWJC No.8236 of 2003 (8) dt.01-10-2012 4/7

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saying that when a statute itself provides for an authority to decide or offer his opinion as envisaged under section 48 (8) of the Cooperative Societies Act, he had no business to mark the said reference either to an Additional District Judge, much less a Subordinate Judge. In this regard, attention of the Court has been drawn to a decision in the similar situation, which is the case of Ram Lagan Yadav versus State and others, reported in 2007(3) PLJR 452 . Emphasis is on paragraphs 8 to 10 of the said decision. Paragraph 8 to 10 are reproduced hereinbelow:

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“8. Further I may point out that where the statute itself provides that the appeal would be to the Collector of the district, that being the legislative mandate, the Collector of the district has no authority to delegate the matter to another, who may be of the rank of Collector or may be Collector as defined for the purposes of the Act.

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9. In that view of the matter, I hold that the appeal, as filed by the private respondents, was before an authority, which was incompetent to hear the matter. The order thus suffers from vice of corum non judice and is nonest. It is accordingly set aside.

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10. It was then argued by Mr. Narayan Singh, learned senior counsel for the private-respondents that the Additional Collector has gone at length and examined materials and his order is otherwise correct, this court should not interfere with such an order. I am afraid the contention has been raised only to be rejected for it is well settled that a right order by a wrong forum is no order. The jurisdiction cannot be conferred except by

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Patna High Court CWJC No.8236 of 2003 (8) dt.01-10-2012 5/7

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legislature or under authority of the legislature. Even consent cannot confer jurisdiction. If the order is bad for want of jurisdiction, mere appearance of the parties would not make such an order valid for which authority had no jurisdiction to take cognizance of the matter."

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If the above proposition of law is taken into consideration read with section 48 (8) of the Cooperative Societies Act, counsel representing the petitioner prima facie seems to be correct that there was no occasion for the District Judge to mark the reference to a Subordinate Judge, which he himself was required to answer.

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Learned Sr. Counsel representing the Society submits that objection with regard to jurisdiction should have been taken at the earliest and if it was not done, the petitioner has no business to challenge the same now merely when the order has gone against his interest. He pressed into service section 21 of the CPC.

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With due respect to learned senior counsel for the Society, section 21 CPC cannot be pressed into service to redeem the situation which the Sub-Judge has created or which has been the outcome of indiscretion committed at the level of the District Judge. Section 21 relates to proceedings of suits, which are brought before the Court of law. Section 21 has been incorporated as part of part 1 of the CPC, which relates to “suits in general and jurisdiction of Courts” etc.

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Patna High Court CWJC No.8236 of 2003 (8) dt.01-10-2012 6/7

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Since a reference does not come within the meaning of a suit under the CPC, therefore, section 21 will not bail out the society from the predicament which has been created due to the answer to the reference given by a Subordinate Judge and not by the District Judge as is statutorily required.

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The other thrust of the argument made on behalf of the Society is that there is no power of attorney which is in existence. The petitioner is only a kind of interloper or selfappointed beneficiary or protector of the interest of the allottee who has accepted before subordinate forum that he has no business or interest in the share / allotment.

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The Court would not like to answer this question at this stage with regard to either the maintainability of the Writ Application as well as the cause of action which is being persued by petitioner for the reason that the Court does come to a considered opinion that Annexure- 1 cannot stand legally. It is required to be quashed. The reference has effect of virtually deciding the lis as a suit between the parties which the Subordinate Judge has no business to decide, as that power is vested in the quasi judicial authority, envisaged under the Cooperative Societies Act. Therefore, Annexure – 1 needs to be interfered with.

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Patna High Court CWJC No.8236 of 2003 (8) dt.01-10-2012 7/7

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Writ Application is allowed. Annexure- 1 is quashed. But the matter is referred back to the Registrar, Cooperative Society now to hear the matter on the dispute between the parties in relation to the allotment which is the subject matter of dispute. The question whether this petitioner has status or right to continue the litigation as a proxy will surely be looked into by the Registrar. However, the finding with regard to the allotment etc. must be reached by him on the dispute irrespective of the finding which may have been given in Annexure- 1, which after it’s quashing will have no relevance to whatever has transpired in the past.

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Writ Application is allowed with a direction upon the Registrar that he will hear the parties to the dispute and decide the matter preferably within a period of three months from the date of production / communication of this Order by either of the parties. Since it is an old matter the dispute must reach a finality at the earliest now.

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(Ajay Kumar Tripathi, J.)

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SKM/-

Ram Bilash Acharya v. the State of Bihar and Ors.

Case brief

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Ram Bilash Acharya v. the State of Bihar and Ors.

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