Dismissed

Abbireddy Surya Rao, v. The a.P.Co-operative Tribunal

Telangana HC4 Dec 2009WP/18077/2009

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an order remanding a recovery appeal for fresh disposal. The Court held that the power of remand is inherent in appellate jurisdiction under Section 76 of the Co-operative Societies Act, 1964, distinguishing it from revision proceedings. The prayer for quashing was rejected.

What did the court decide?

The writ petition was dismissed with no order as to costs, affirming the Tribunal's inherent power to remand.

Abbireddy Surya Rao, Vs The a.P.Co-operative Tribunal — Cooperative Societies | Telangana HC (2009)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction)

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FRIDAY, THE FOURTH DAY OF DECEMBER TWO THOUSAND AND NINE

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PRESENT

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THE HON'BLE SRI JUSTICE P.S. NARAYANA

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WRIT PETITION No.18077 of 2009

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Between:

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Abbireddy Surya Rao, S/o. Late Sita Ramaiah

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..... PETITIONER

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AND

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The Andhra Pradesh Co-operative Tribunal, Vijayawada, Represented by its Secretary and others

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....RESPONDENTS

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The Court made the following:

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THE HON’BLE SRI JUSTICE P.S. NARAYANA

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WRIT PETITION No.18077 OF 2009

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ORDER:

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This Court while ordering notice before admission on 28.08.2009 granted interim stay for a limited period, which is being extended from time to time.

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2. Respondent No.2 filed counter affidavit.

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3. This writ petition is filed for a writ of mandamus declaring the order dated 08.07.2009 in O.A.No.56 of 2007 on the file of the Andhra Pradesh Co-operative Tribunal, Vijayawada-respondent No.1, as illegal, arbitrary and violative of Articles 14, 19, 21 and 300-A of the Constitution of India and to set aside the same and consequently to direct respondent Nos. 2 to 5 not to initiate any proceedings and not to exercise any steps against the petitioner in recovering any thing under the order dated 08.07.2009 in O.A.No.56 of 2007 and pass such other suitable orders.

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4. Sri D.V.N. Acharya, learned counsel representing the writ petitioner, would maintain that the power of remand is not conferred by Section 76 of the Andhra Pradesh Co-operative Societies Act, 1964 (hereinafter in short referred to as, ‘the Act’, for the purpose of convenience) and hence the order of remand made by the Andhra Pradesh Co-operative Tribunal, Vijayawada (hereinafter in short referred to as, ‘the Tribunal’, for the purpose of convenience) is one without jurisdiction and hence the same is liable to be set aside. The learned counsel had also further drawn the attention of this Court to the respective stands taken by the parties and also would maintain that the Tribunal totally erred in referring to letter dated 20.05.2006 and making certain observations in relation to said data had caused serious prejudice to the writ petitioner. Incidentally, the learned counsel had also drawn the attention of this Court to the language employed in Sections 76 and 77 of the Act and would maintain that since such power to remit for reconsideration had been specifically averred under Section 77 of the Act and that revision in the absence of such language, the power to remand and the power to remit cannot be read into as far

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as Section 76 of the Act is concerned. The counsel also placed reliance on certain decisions.

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5. The learned Assistant Government Pleader for Co-operation had taken this Court through Sections 76 and 77 of the Act and also to the relevant portions of the order under challenge and would maintain that inasmuch as only an order of remand was made no serious prejudice is caused to the writ petitioner.

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6. M/s. B. Vijaya Lakshmi, the learned counsel representing respondent Nos.3 and 4, had placed reliance on the language employed in Sections 76 and 77 of the Act as well.

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7. Sri Chidambaram, the learned counsel representing respondent No.2, however would maintain that the power to remit or the power to remand, these powers are the incidental powers to the appellate powers and hence the content that such power is not available to the appellate authority cannot be a sustainable contention. Further, the learned counsel had also drawn the attention of this Court to SubSection 4 of Section 76 of the Act and would lay emphasis on the words “pass such order thereon as it may deem fit”. Further the learned counsel would maintain that in the light of the convincing reasons recorded at paragraph No.7 of the order under challenge, it is not a fit matter to be interfered with under Article 226 of the Constitution of India. The learned counsel while further elaborating his submissions would maintain that addressing of the letter dated 20.05.2006 to the Sale Officer of the Bank alone had been referred to and does not bestow further opportunity in this regard to be given to the petitioner before the primary authority and hence even in this view of the matter since no prejudice is caused to the writ petitioner, the said observations, if any, made at paragraph No.8 also need not be disturbed. The

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learned counsel also placed reliance on certain decisions to substantiate the submissions.

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8. Heard the counsel.

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9. The prayer of the petitioner in the writ petition had also been referred to above.

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10. It is the case of the petitioner that the petitioner is a permanent resident of Kanthampalem Village, Chintalapudi Mandal, West Godavari District and the same would not fall within the area of operation of respondent No.2 and the petitioner is not a member of the said society. Thus, specific stand had been taken that the petitioner has nothing to do with respondent No.2-Society, except the business in seeds as dealer of respondent No.2-Society.

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11. It is also the case of the petitioner that the Ex-Secretary of respondent No.2-Society, who happened to be his relative, had taken his signatures on various papers during the course of business with respondent No.2-Society and taking advantage of having his signatures on the papers, the Ex-Secretary of respondent No.2-Society had misappropriated a sum of Rs.50,000/- alleged to have been sanctioned to him. It is also his case that the petitioner never borrowed any amount whatsoever. The alleged loan amount was mentioned in the statutory inquiry under Section 51 of the Act initiated against the said amount from the Ex-Secretary. Thus, it is evident that the Ex-Secretary misappropriated various amounts including the alleged loan amount sought to be recovered from him.

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12. It is also the case of the writ petitioner that respondent No.2 filed recovery petition under Section 71 of the Act before the Co-operative

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Sub-Registrar, who inturn passed ex-parte award against the petitioner and in Execution proceedings the properties of the petitioner were sought to be sold in auction. Under those circumstances, the petitioner was constrained to approach the Tribunal, Vijayawada by filling an appeal O.A.No.56 of 2007. The Tribunal finally disposed of the O.A.No.56 of 2007, allowing the appeal and remanding the matter to respondent No.3 with a direction to look into the alleged letter dated 20.05.2006 said to have been addressed by the petitioner to respondent No.3 with a further direction to mark the said letter as necessary exhibit while disposing of the matter. This observation or direction thus would cause serious prejudice to the petitioner.

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13. It is further stated that respondent No.2-Society filed O.S.No.97 of 1999 on the file of the Principal Senior Civil Judge, Eluru for recovering Rs.2,30,018-01 against the petitioner and the same was decreed on 06.06.2005 and aggrieved by the same A.S.No.272 of 2005 was preferred before the Principal District Judge, Eluru and the same was dismissed on 18.09.2006 and being aggrieved of the same S.A.No.623 of 2007 was filed and the same is pending. It is also stated that in the said Second Appeal, interim stay had been granted.

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14. Several other further averments had also been made in paragraph Nos.9, 10 and 11 of the affidavit filed in support of the writ petition.

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15. In the counter affidavit filed by respondent No.2 several of the said averments had been denied. Specific stand had been taken that the petitioner is a shareholder in respondent No.2-Society bearing admission No.11273 and the petitioner is a resident of Pulla Village which falls within the area of operation of respondent No.2-Society. The petitioner availed the loan from the respondent No.2-Society to a

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tune of Rs.50,000/- on 06.08.1998 vide Loan No.54 CC. The petitioner while applying for loan declared that he is not a member of any other co-operative society on 11.05.1998. The petitioner created a charge under Section 36 of the Act in favour of respondent No.2-society against his landed property situated in Ganijerla Village of Chintalapudi Mandal, West Godavari District. The said charge was registered as document No.1239/1998 in the office of sub-registrar of Assurances, Chintalapudi Mandal. The Encumbrance Certificate obtained in this regard had also been referred to. The petitioner also submitted a certificate from the Pothunuru Primary Agricultural Co-operative Society regarding the loan clearance and non-member certificate. Thus it is stated that respondent No.2-Society had taken all necessary precautions before disbursement of the loan to the petitioner in accordance with the bylaws of the society.

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16. Certain further averments had also been made in relation to the allegation of collusion. Specific stand had been taken that the relative of the petitioner also caused loss to respondent No.2 society by way of misappropriation, for which a surcharge order was made and O.A.No.7 of 2008 was filed, which was dismissed by the Tribunal. The relevant provisions of the Act like Sections 51, 60 and 71 of the Act had been referred to. The details had been narrated in paragraph Nos.4 to 10 of the counter affidavit and ultimately specific stand had been taken that in the light of the facts and circumstances of the case, the writ petition being devoid of merits the same to be dismissed.

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17. The relevant portion of the order made in O.A.No.56 of 2007 on the file of the Tribunal reads as hereunder:

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“7) We have perused the entire records submitted by the 1^st respondent. On perusal of the records, we find that no notice was issued to the appellant before passing the award

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by the 1^st respondent and the 1^st respondent has not furnished acknowledgement in token of receipt of the notice by the appellant. Therefore, we hold that no opportunity was given to the appellant by the 1^st respondent before passing the impugned order dated 27.11.2007. Therefore, it is a fit case to remand the matter back to the 1^st respondent for fresh disposal according to law by duly following the procedure laid down in the A.P.C.S. Act and Rules.

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8) The counsel for 1^st respondent has brought to our notice that the appellant has addressed a letter dated 20.05.2006 to the Sale Officer of the Bank, wherein, he (appellant) admitted about the receipt of the loan amount of Rs.50,000/- and sought time for 15 days to repay the debt. The 1^st respondent has to look into this fact and he is directed to mark the said letter as necessary exhibit while disposing the matter.”

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18. It is no doubt true that in paragraph No.8 letter dated 20.05.2006 addressed to the Sale Officer of the Bank had been referred to. It is pertinent to note that the Tribunal observed that respondent No.1 has to look into this fact and he is directed to mark this as necessary exhibit while disposing of the matter. It is made clear that the writ petitioner is at liberty to take the objections, if any, in this regard before the Primary Authority. Suffice to make such observation since this Court is satisfied with the mere fact that the Tribunal had referred to a letter dated 20.05.2006 that by itself may not cause serious prejudice to the petitioner. It is needless to say that petitioner may have to be given an opportunity by the Primary Authority in this regard.

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19. The other contention which had been argued in elaboration is the power of remand. It is no doubt true that Section 77 of the Act dealing with revision clearly specifies “any such decision or order should be modified, annulled, reversed or remitted for reconsideration”.

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Section 76 of the Act deals with Appeal. Section 76(4) of the Act specifies “in disposing of an appeal under this Section, the Tribunal may, after giving the parties an opportunity of making their representations, pass such order thereon as it may deem fit”.

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20. As already aforesaid Sri Chidambaram, the learned counsel representing respondent No.2, laid emphasis on the words in Subsection 4 of Section 76 of the Act “pass such order thereon as it may deem fit”.

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21. In N.K.Dharmadas v. State Transport Appellate Tribunal of Kerala and others^[1] the full bench of Kerala High Court at paragraph Nos.5 to 9 observed thus:

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“5) The question whether a State Transport Appellate Tribunal in dealing with an appeal under S.64 of the Motor Vehicles Act, 1939, has the power to remand the case to the Regional Transport Authority for fresh disposal or not is a question of importance. It is essentially for a decision of that question that this appeal has been posted before a Full Bench.

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6) Section 64 of the Motor Vehicles Act, 1939 only says that the persons specified therein may, within the prescribed time and in the prescribed manner, appeal to the prescribed authority who shall give such persons and the original authority an opportunity of being heard. A power of remand is not specifically mentioned in the section. But as pointed out by the Supreme Court in Ram Gopal v. Anant Prasad, AIR 1959 SC 851, S.64 is not concerned with defining the powers of the appellate authority and does not purport to do so.

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7) The only question is whether a power to remand should be considered as having been granted by necessary implication. It is certainly not excluded by the fact that the original authority gets an opportunity of being heard.

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8) In Yagsen Ram Prasad Khewat v. Chief Commr. Ajmer, AIR 1956 Ajmer 41 Nigam, J.C. said:

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“ In my opinion, the power of remand is inherent in the very constitution of an appellate Court. An appellate Court has the right to set aside the order of the trial Court. When it does so, it may go further and substitute its own order for the order appealed against or it may not go so far and may merely quash the order appealed against and automatically require the subordinate authority to restore the original cause and to decide it afresh.

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In my opinion, the absence of a power of remand would limit and to some extent negative the completeness of the power of the appellate authority and I am, therefore, of opinion that whether there is a specific provision or not, the power to order a remand must be taken to be inherent in every appellate Court in its very constitution as an appellate authority.”

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To the same effect is Swarajyalakshmi v. State of Andhra Pradesh, AIR 1959 Andh Pra 321, Narendra Kumar Das v. Transport Appellate Board Assam AIR 1960 Assam 100 also takes the view that the power of remand is implicit in the power to dispose of an appeal.

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(9) All the three decisions mentioned above, relate to Section 64 of the Motor Vehicles Act, 1939. We are in agreement with them and consider it unnecessary to deal with the decisions under analogous enactments. In final analysis the powers, if any, that will be deemed to have been granted by necessary implication will depend on the jurisdiction conferred and on whether that jurisdiction is untrammelled or trammelled, and if trammelled, to what extent. Decisions under one enactment are in the very nature of things be of little or no assistance for the decision of the question under another enactment.”

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22. The said decision infact was referred to and approved by the Apex Court in Income Tax Officer, Cannanore v. M.K. Mohammed

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Kunh i^[2] the Apex Court was dealing with Section 254 of the Income Tax Act, 1961. The Apex Court observed thus:

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“The powers which have been conferred by Section 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective. In Domat’s Civil Law, Cushing’s Edition, Vol. 1 at page 88, it has been stated:

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“ It is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it.” Maxwell on Interpretation of Statutes, Eleventh Edition contains a statement at p.350 that “where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui Jurisdictio data est, ea quoqe concessa esse vindetur, sine quibus jurisdictio explicari non potuit.” An instance is given based on Ex Parte, Martin (1879) 4 QBD 212 at P.491 that “where an inferior Court is empowered to grant an injunction, the power of punishing disobedience to it by commitment is impliedly conveyed by the enactment, for the power would be useless if it could not be enforced.”

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5. The High Court in the present case has referred to certain decisions under the Motor Vehicles Act in which the question arose whether an interim order of stay could be passed although Section 64(2) of the Motor Vehicles Act as amended did not expressly confer a power on the authority to pass such an order. It was held in those cases that the power to stay was a necessary corollary to the power to entertain an appeal or revision: Swarnambiker Motor Service v. Wahita Motor Service, 1956-2 Mad LJ (SN) 12: Themmalpuram Bus Transport Ltd. V. Regional Transport Officer, Malabar, AIR 1957 Ker 142. The Full Bench decision in Dharmadas v. State Transport Appellate Tribunal, 1962 Ker LJ 1133 = (AIR 1963 Ker 73) (FB) related to the question whether a remand could be ordered in exercise of appellate jurisdiction under Section 64 of the Motor Vehicles Act

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in the absence of any express power to that effect existing in the statute. It was held that the power to remand was incidental to and implicit in the appellate jurisdiction created by Section 64. According to the decision in the Burhanpur Tapti Mill Ltd. V. Board of Revenue, Madhya Pradesh, 1955-6 STC 670 (Nag), since the Board of Revenue had the power to adjudge the correctness of an order passed by the Commissioner under Section 22B reopening an assessment the Board had also the power to stay the fresh assessment proceedings started by the Assistant Commissioner in pursuance of that order. It was said that the general principle was that in a taxing statute there was no room for what could be called the equitable construction, but that principle applied only to the taxing part of the statute and not to the procedural part. It has further been observed that where the legislature invests an Appellate Tribunal with powers to prevent an injustice, it impliedly empowers it to stay the proceedings which may result in causing further mischief.”

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23. Sri D.V.N. Acharya no doubt placed strong reliance on the

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decision of this Court in Kata Arogyaiah and others v. Chippa Pentamma^[3] and would maintain that in the light of this decision and especially in the light of the language of Section 76 of the Act, in the absence of conferment of the specific power of remand such power cannot be exercised. It is needless to say that when the decision of the Apex Court is available on the point, this sub-section need not detain this Court any longer and in the light of the view expressed by the Apex Court and also in the light of the language of Section 76(4) of the Act aforesaid, this Court is of the considered opinion that the power to remit or power to remand are available to the Tribunal. Many other points had been argued before this Court. In the light of the same, the writ petition being devoid of merit, the same shall stand dismissed subject to the observation made supra.

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24. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs.

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P.S. NARAYANA, J

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December 4, 2009 MD

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[1] AIR 1963 KERALA 73 (V50 C22) [2] AIR 1969 SC 430 [3] 2006 (4) ALD 157

Abbireddy Surya Rao, v. The a.P.Co-operative Tribunal

Case brief

What is this about?

What did the court decide?

Abbireddy Surya Rao, v. The a.P.Co-operative Tribunal

Case brief

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What did the court decide?

What the court decided

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