advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Tuesday, May 13, 2014

PIL- challenge - constitutional validity of sec.3 ,77 (3)(b) and Section 77 (6) of M.P. State Co-operative Societies Act, 1960 - appointment of quasi judicial authorities who have no knowledge in legal filed - High court dismissed the writ - Apex court too dismissed the writ but held that we direct that the State Government shall, keeping in mind the objective of the Act, the functions which the Registrar, Joint Registrar etc. are required to perform and commensurate with those, appointment of suitable persons shall be made. Likewise, having regard to the fact that the Chairman of the Tribunal is to be a judicial person, namely, Former Judge of the High Court or the District Judge, we are of the opinion that for appointment of the Chairman and the Members of the Tribunal, the respondent- State is duty bound to keep in mind and follow the mandate of the Constitution Bench judgment of this Court in R.Gandhi (supra). Thus, for appointment of the Chairman and Members of the Tribunal, the selection to these posts should preferably be made by the Public Service Commission in consultation with the High Court.= Satya Pal Anand ….Petitioner Vs. State of M.P. & Anr. …Respondents = 2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41509

 PIL- challenge - constitutional validity of sec.3 ,77 (3)(b) and  Section  77  (6) of  M.P.  State
Co-operative Societies Act, 1960 - appointment of quasi judicial authorities who have no knowledge in legal filed - High court dismissed the writ - Apex court too dismissed the writ but held that  we direct that the State Government shall, keeping in  mind  the  objective  of
the Act, the  functions  which  the  Registrar,  Joint  Registrar  etc.  are required to perform and commensurate with  those,  appointment  of  suitable persons shall be  made.  Likewise,  having  regard  to  the  fact  that  the Chairman of the Tribunal is to be a judicial person,  namely,  Former  Judge of the High Court  or the District Judge, we are of  the  opinion  that  for appointment of the Chairman and the Members of the Tribunal, the respondent- State is duty  bound  to  keep  in  mind  and  follow  the  mandate  of  the Constitution Bench judgment of this Court in  R.Gandhi  (supra).  Thus,  for appointment of the Chairman and Members of the Tribunal,  the  selection  to these posts should preferably be made by the Public  Service  Commission  in consultation with the High Court.=


validity of Section 3 of  the  M.P.  State
Co-operative Societies Act, 1960 (hereinafter referred to  as  the  Act)  to
the extent this provision  permits  the  State  Government  to  appoint  the
Registrar of the Co-operative Society,  as  well  as  Additional  Registrar,
Joint Registrar, Deputy Registrar, Assistant Registrar etc.  The  petitioner
also challenged proviso added to Section 77 (3)(b) and  Section  77  (6)  of
the Act as unconstitutional. To put it  succinctly,  the  grievance  of  the
petitioner was that these provisions provide for appointment of persons  not
having any education in  law,  though  discharging  the  judicial  function,
which was impermissible and ex-facie violative of Art.  14  and  21  of  the
Constitution.  The petitioner had even given suggestion to the  effect  that
the appointments of these presiding officers be  made  in  manner  presiding
officers of the labour courts are appointed.=
the High  Court
repelled the challenge of the petitioner  to  the  vires  of  the  aforesaid
provisions of  the  Act  and  dismissed  the  Writ  Petition  filed  by  the
petitioner.=
APEX COURT HELD 


   We would like to point out that such quasi judicial powers  are  given
even to the Election Commission under  the  Representation  of  People  Act,
1951 in a matter where it decides as to  whether  to  register  a  political
party or not. This was  so  made  clear  in  the  case  of  Indian  National
Congress (I) vs. Institute of Social  Welfare  &  Ors.  2002  (5)  SCC  685.
Notwithstanding that Election Commission under Section 29-A of the said  Act
is required to act judicially and the act of Commission, in  that  capacity,
is quasi judicial, nobody  has  ventured  to  say  that  such  functions  be
discharged only by a person with judicial/legal background.

19.   Having determined the question raised, we would like to emphasize  the
need for appointment of  suitable  persons  not  only  as  Registrar,  Joint
Registrar etc. but as Chairman and members of the tribunal  as  well.  While
discharging quasi-judicial functions Registrar, Joint Registrars  etc.  have
to keep in mind that they have  to  be  independent  in  their  functioning.
They are also expected to acquire necessary expertise  to  effectively  deal
with the disputes coming before them. They are supposed to be  conscious  of
competing rights in order to decide the case justly and fairly and  to  pass
the orders which are legally sustainable. In this behalf, we would  like  to
refer  to  judgment  dated  3.9.2013  passed  in  the  Review  Petition  (C)
No.2309/2012 (Namit Sharma case).  In that  case,  one  unfortunate  feature
that was noted was that experience over the years has shown that the  orders
passed  by  Information  Commissions  have,  at  times,  gone   beyond   the
provisions of the Right to Information Act and that Information  Commissions
have not been able to harmonise the conflicting interests indicated  in  the
preamble and other provisions of the Act. The reasons  for  this  experience
about the functioning of the Information Commissions could  be  either  that
the persons who do not answer the criteria mentioned in Sections  12(5)  and
15(5) have been appointed as Chief  Information  Commissioner  or  that  the
persons appointed even when they answer the aforesaid criteria, they do  not
have the required mind to balance the interests indicated in  the  Act.   It
was  therefore  insisted  that  experienced  suitable  persons   should   be
appointed  who  are  able  to  perform  their  functions   efficiently   and
effectively. In this behalf certain directions were given  and  one  of  the
directions was that while making recommendation for appointment of  CIC  and
Information Commissioners the Selection Committee must mention against  name
of each candidate recommended the facts to indicate his eminence  in  public
life ( which  is  the  requirement  of  the  provision  of  that  Act),  his
knowledge and experience in the particular field and  these  facts  must  be
accessible to the citizens as part of their right to information under  that
Act, after the appointment is made.

20.   Taking clue from the aforesaid directions,  and  having  gone  through
the similar dismal state of affairs  expressed  by  the  petitioner  in  the
instant petition about the functioning  of  the  cooperative  societies,  we
direct that the State Government shall, keeping in  mind  the  objective  of
the Act, the  functions  which  the  Registrar,  Joint  Registrar  etc.  are
required to perform and commensurate with  those,  appointment  of  suitable
persons shall be  made.  Likewise,  having  regard  to  the  fact  that  the
Chairman of the Tribunal is to be a judicial person,  namely,  Former  Judge
of the High Court  or the District Judge, we are of  the  opinion  that  for
appointment of the Chairman and the Members of the Tribunal, the respondent-
State is duty  bound  to  keep  in  mind  and  follow  the  mandate  of  the
Constitution Bench judgment of this Court in  R.Gandhi  (supra).  Thus,  for
appointment of the Chairman and Members of the Tribunal,  the  selection  to
these posts should preferably be made by the Public  Service  Commission  in
consultation with the High Court.

21.   As a result, subject to the aforesaid directions, this  Special  Leave
Petition is dismissed. 
2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41509
ANIL R. DAVE, A.K. SIKRI
                                             [REPORTABLE]

                 IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION

                  SPECIAL LEAVE PETITION( C) No. 33644/2011

Satya Pal Anand                                    ….Petitioner

                 Vs.

State of M.P. & Anr.                                     …Respondents



                               J U D G M E N T

A.K.SIKRI,J.

1.    The petitioner herein had filed Writ Petition  under  Article  226  of
the Constitution in the High Court of  Madhya  Pradesh,  Principal  Seat  at
Jabalpur,    in the nature of Public Interest Litigation. In that  petition,
the petitioner has challenged the validity of Section 3 of  the  M.P.  State
Co-operative Societies Act, 1960 (hereinafter referred to  as  the  Act)  to
the extent this provision  permits  the  State  Government  to  appoint  the
Registrar of the Co-operative Society,  as  well  as  Additional  Registrar,
Joint Registrar, Deputy Registrar, Assistant Registrar etc.  The  petitioner
also challenged proviso added to Section 77 (3)(b) and  Section  77  (6)  of
the Act as unconstitutional. To put it  succinctly,  the  grievance  of  the
petitioner was that these provisions provide for appointment of persons  not
having any education in  law,  though  discharging  the  judicial  function,
which was impermissible and ex-facie violative of Art.  14  and  21  of  the
Constitution.  The petitioner had even given suggestion to the  effect  that
the appointments of these presiding officers be  made  in  manner  presiding
officers of the labour courts are appointed.

2.    The  Writ  Petition  was  contested  by  the  respondents  on  various
grounds. In the first place, the very maintainability of the  Writ  Petition
was assailed on the ground that the petitioner had not approached  the  High
Court with clean hands and had suppressed the fact that  he  was  a  chronic
litigant whose various cases were  pending  before  the  Cooperative  Court.
Therefore, he had personal interest in the  matter.  As  such,  he  was  not
competent to file the Writ Petition in the nature of PIL. On merits, it  was
submitted that such Registrar,  Addl.  Registrar  etc.  function  under  the
supervision of M.P. State Cooperative Tribunal (in  short  ‘the  Tribunal’).
The Chairman of the Tribunal is  a  judicial  officer.   Again,  both  these
authorities function under the over all superintendence of  the  High  Court
under  Art.227  of  the  Constitution.  In  several  other  enactments   the
administrative officers perform such quasi judicial functions.

3.    After considering the submissions of both the parties, the High  Court
repelled the challenge of the petitioner  to  the  vires  of  the  aforesaid
provisions of  the  Act  and  dismissed  the  Writ  Petition  filed  by  the
petitioner.

4.    Against the aforesaid judgment,  present  Special  Leave  Petition  is
preferred under Art. 136 of the Constitution. The  petitioner  has  appeared
in person and filed written submissions.   At  the  time  of  arguments,  he
referred to and read out certain portion of those  written  submissions  and
submitted that he did not have to say anything more than what  is  contained
therein. The learned counsel for the respondents on the  other  hand  relied
upon the reasoning given by the High  Court  in  the  impugned  judgment  to
justify the said order. We have perused the judgment minutely and have  also
gone through the written submissions of the petitioner.

5.    Before adverting to these submissions, we would like to reproduce  the
provisions of the Act which are subject matter of the present challenge:

                 “3. Registrar and other officers.-

                 (1) The State Government shall appoint a person to be  the
        Registrar of Co-operative Societies for the State and  may  appoint
        one or more officers of the following  categories  to  assist  him,
        namely:

                 (a) Additional Registrar of Co-operative Societies;

                 (b) Joint Registrar of Co-operative Societies;

                 (c)  Deputy Registrar of Co-operative Societies;

                 (d) Assistant Registrar of Co-operative Societies;

                  (e)  Such  other  categories  of  officers  as   may   be
        prescribed.

                            xxxxxx           xxxxxx             xxxxxx”




                 77.   Madhya Pradesh State Co-operative Tribunal.

                 (3) (b) Of the other two members, one shall be an  officer
        of Co-operative Department not below the rank  of  Joint  Registrar
        and the other shall be non-official  closely  associated  with  co-
        operative movement or an Advocate or  a  Pleader  having  practical
        experience for a period of not less than fifteen years:

                 Provided that if the  State  Government  thinks  fit,  the
        Tribunal may consist of a single person.

                       xxxx       xxxxx                 xxxxx




                 (6) Notwithstanding anything contained in sub-section  (4)
        the State Government may terminate at any time, the appointment  of
        the Chairman or a member if,  in  its  opinion,  such  Chairman  or
        member is unable or unfit to constitute to perform  the  duties  of
        his office:

                 Provided that no appointment  shall  be  terminated  under
        this sub-section unless the person whose appointment is proposed to
        be terminated is given  reasonable  opportunity  of  showing  cause
        against such termination.”



6.    With this, now let us first deal with the argument pertaining  to  the
validity of Section 3 of the Act.  As is clear from  the  above,  Section  3
deals with appointment of the Registrar of Co-operative  Societies  as  well
as  Additional  Registrar,  Joint  Registrar,  Deputy  Registrar,  Assistant
Registrar  etc.   As mentioned above, the plea of  the  petitioner  is  that
since Registrar and other officers are performing  judicial  function  under
the Act, any person to be appointed as Registrar, Joint Registrar  etc.  has
to be necessarily a law person, namely, a person who has  education  in  law
and is well equipped to discharge such adjudicatory functions.

7.    In order to appreciate this contention, we will have to look into  the
functioning of the Office of Registrar under  the  Act.  It  is  elaborately
explained in the impugned judgment of the High  Court  and  no  quarrel  was
made  by  the  petitioner  in  respect  of  that  portion  of  the  judgment
explaining the scheme of the Act. Therefore,  we  can  briefly  restate  the
same.     Registrar under the provisions of the Act is  the  executive  head
of the cooperative movement which is intended to  provide  strength  to  the
weaker sections of the community   and is based on contribution  through  an
open door policy. The Registrar is supposed to be  “the  friend  philosopher
and guide” and is required to see  that  the  cooperative  movement  remains
within prescribed limit. Sections 8 and 9 of the Act empower  the  Registrar
to deal with the question of registration of a society. Under Section 10  of
the Act, the Registrar has the  power  to  classify  the  societies  whereas
Sections 11 and 12 of the Act deal with the power of Registrar  with  regard
to amendment of bye-laws of the society.  Section 18 empowers the  Registrar
to direct cancellation of registration of the society whereas under  Section
18-A of the Act the Registrar can order de-registration of societies.  Under
Section 19-A of the Act, the Registrar may declare a person  ineligible  for
membership of the society.   Section 49-D of the Act deals  with  the  power
of the Registrar to give direction  to  the  society  to  make  regulations.
Section 53 of the Act empowers the Registrar to  order  suppression  of  the
committee of the society in the contingencies mentioned in  sub-section  (1)
of Section 53.  Under the  aforesaid  provisions,  thus,  the  Registrar  is
discharging pure administrative functions. Section 57 of the Act deals  with
the power of Registrar to seize records of the society in the  circumstances
which have been specified in sub-section  (1)  of  Section  57.  Section  58
deals with the power of Registrar to audit or  cause  to  be  audited  by  a
person authorized by Section  59  of  the  Act  empowers  the  Registrar  to
conduct an enquiry into the affairs of  the  society  in  the  circumstances
enumerated in Section 59(1).

8.    However, limited powers  are  given  to  the  Registrar  to  entertain
certain kinds of disputes and take decision  thereupon  as  well.  One  such
provision is  Section  55  of  the  Act  which,  inter-alia,  provides  that
regarding terms of  employment, working conditions and  disciplinary  action
taken by  a  Society,  if  a  dispute  arises  between  a  Society  and  its
employees, the Registrar or any officer appointed  by  him  (not  below  the
rank of  Assistant Registrar) shall decide the  dispute.  Likewise,  Section
64 of the Act provides that the Registrar shall decide the dispute  touching
upon the Constitution, management  or  business,  terms  and  conditions  of
employment   of   a   Society   or   the   liquidation   of   the   Society.


9.    The question that  falls  for  consideration  is  whether  it  becomes
imperative to appoint  a  Registrar  with  legal  and/or  judicial  backdrop
keeping in view the aforesaid Scheme of the Act? In an endeavour to  justify
the appointment of a  legal  person  to  man  this  office,  the  petitioner
submitted that the very nature and significance of the functions  discharged
by the Registrar or his nominee, would manifest that knowledge  of  law  and
practice is dispensable to effectively carry out  those  functions  inasmuch
as such presiding officer is supposed to be conversant with  the  provisions
of Civil Procedure Code,  Law  of  Evidence,  Indian  Penal  Code,  Code  of
Criminal Procedure, etc.  It was further submitted that  the  functions  are
such that authority  discharging  such  function  is  to  be  classified  as
“court” and it is so held by this Court in the case of Thakur Jugal  Kishore
v. Sitamarhi Central Co-operative Bank Ltd. AIR 1967 SC 1494. This  decision
is  followed  subsequently  in  Mukri  Gopalan  v.  Cheppilat  Puthampurayil
Aboobacker AIR 1995 SC 2272 and P.Sarathy v. State Bank of  India  AIR  2000
SC 2023.

10.   The petitioner also submitted that the Bombay High Court in  the  case
of Maharashtra Co-operative Courts Bar Association, Bombay & Ors.  v.  State
of Maharashtra & Ors. 1990 Mah.L.J. 1064 has held that presiding officer  of
the cooperative court form cadre of  subordinate  courts  as  understood  by
Art.234 of the Constitution of India and State Government will have to  take
action to make appointment of these presiding  officer  in  accordance  with
the direction contained in the said Article.  In other words, it would  mean
that they can be selected by the Maharashtra Public  Service  Commission  in
consultation with the High Court. On that basis, the petitioner pleads  that
State Government should not be given right to  appoint  any  person  as  the
Registrar etc. The petitioner also went to the extent of   describing  these
functionaries as the “Cooperative Courts”  while  discharging  these  duties
through no such nomenclature is provided in the Act. He also submitted  that
in the    State  of  M.P.  functioning  of  these  authorities  was  dismal,
creating unfortunate and painful situation  which  was  because  the  reason
that persons appointed were  blissful  ignorant  about  the  legal  aspects.
They were not functioning “independently” as well,  though  independence  of
judiciary was the hallmark of the basic structure of the  Constitution.   He
argued that with such appointments impartiality, independence, fairness  and
reasonableness is threatened and compromised. In support of  this  argument,
the petitioner has referred to the following judgments.

      (2010) 11 SCC 11 : UOI v. R.Gandhi President Madras Bar Assn.

      (2012) 10 SCC 353:  State of Gujarat v. Gujarat Revenue  Tribunal  Bar
Assn.

      (2013) 1 SCC 745:  Namit Sharma v. UOI.

11.   We have already taken note of the Scheme of the Act and the  role  and
functioning of the office of the Registrar under the said  Scheme.  Most  of
the powers of the Registrar are administrative in nature.  While  exercising
those powers the Registrar is not deciding any lis. He is one  of  the  main
administrative  functionaries  for  the  purposes  of   carrying   out   the
objectives of the said Act. At the same time, the  Registrar  is  also  give
some    quasi-judicial    powers.    He,    also     for     that     matter
Additional/Joint/Deputy/Assistant  Registrar  are,  therefore,  wearing  two
hats, with predominant role of the administrators. It is  not  the  case  of
the petitioner that the judicial function should  be  taken  away  from  the
Registrar and assigned to some other authority. The petitioner  has  pleaded
for appointment of a person with  legal  background  as  Registrar  etc.  to
enable him to decide the dispute between the parties  more  effectively,  as
according to him, any person with no legal/judicial background is  incapable
of deciding those cases. However, same arguments can  be  pressed  by  other
side in  a  reverse  situation.   If  a  person  with  legal  background  is
appointed to any of these posts, then his appointment can be  challenged  on
the ground that such a person though would be fit  to  discharge  the  quasi
judicial duties, but totally unfit to discharge other administrative  duties
which are the primary and day to day duties attached to the said office.

12.   We would have still given  some  weightage  to  the  argument  of  the
petitioner, had it been a case where order of the Registrar, deciding    the
dispute, was made final. That is not so. In fact, under  Chapter  X  of  the
Act, M.P. State Cooperative Tribunal is constituted. This Tribunal  consists
of the Chairman and two other Members. In so far as Chairman  is  concerned,
Section 77 (3) (a) unambiguously provides that no person shall be  qualified
to be the Chairman of the Tribunal unless he had been  a  Judge  of  a  High
Court or has held the office of a District Judge for not less than 5  years.
Likewise, in respect of two Members of the  Tribunal,  Section  77  (3)  (b)
contains a clear stipulation that  one  of  them  shall  be  an  officer  of
Cooperative Department not below the rank of Joint Registrar, and the  other
shall be non-official closely associated with the  cooperative  movement  or
an Advocate or a pleader having practical experience for  a  period  of  not
less than 15 years. With such a composition of the Tribunal, which is  given
power to hear appeals from the orders of the Registrar or his  nominee,  the
apprehension of the petitioner is adequately taken care of .  We  find  that
in addition to hearing the appeals from the orders  of  the  Registrar,  the
Tribunal is also given power of revision and  review.  Similar  schemes  are
provided in various other statutes wherein at the first ladder of  the  lis,
powers are given to the administrative authorities to decide the  same  with
provision for appeal against those orders. One example  is  Public  Premises
(Eviction of Unauthorized Occupants) Act 1971. In such cases the orders  are
passed by the Estate Officer and the order of the  Estate  Officer  is  made
amenable to challenge before the District Judge  under  Section  9  of  that
Act. Similar position can be found under the Land Reforms  Act  and  various
other Acts.

13.   We emphasize, at the cost of repetition, that most  of  the  functions
are in the sphere of  administration  and  governance  with  few  additional
duties having quasi judicial  character.   In  such  a  situation  and  more
particularly when a Tribunal is constituted with  all  the  trappings  of  a
court, we do not find any fault with the provision of Section 3 of  the  Act
empowering  the  Government  to  appoint  persons   as   Registrars,   Joint
Registrars, Deputy Registrars  and  Assistant  Registrars  etc.  necessarily
with legal/judicial background.  Challenge to the vires of Section 3 of  the
Act is, therefore, rejected, upholding the judgment of  the  High  Court  on
this issue for our own reasons given hereinabove.

14.   In so far as the provisions of Section 77 (3) (b) and Section  77  (6)
of the Act are concerned, we hardly see any reason to hold these  provisions
as unconstitutional. Section 77 deals  with  the  Cooperative  Tribunal.  As
already pointed out above, this tribunal consists of   a  Chairman  and  two
other Members. Chairman is to be a  person  with  judicial  background.   No
person is qualified to be the Chairman  of the Tribunal unless he  had  been
a Judge of a High Court or who held the office of  the  District  Judge  for
not less than 5 years. Two Members of the tribunal are to  be  appointed  as
per the impugned provisions namely Section 77 (3) (b)  of  the  Act.  Scheme
shows that out of the two, one would be ‘administrative  member’  and  other
may be a ‘judicial member’ though  such  nomenclature  is  not  specifically
assigned. However, it becomes clear from the provision which  provides  that
one of the members  would  be  the  person  not  below  the  rank  of  Joint
Registrar. It clearly shows that he would be a person who would have  worked
as Joint Registrar and in that capacity gained experience on  administrative
side about the functioning of the cooperative societies. In  that  capacity,
he would have also gained some experience of deciding the  disputes  between
the parties which could be assigned to him.  Other  member  is  to  be  non-
official and he/ she could be the person who is closely associated with  the
cooperative movement or an Advocate or a pleader with  practical  experience
for a period of not less than 15 years. Therefore, other members  can  be  a
person with legal background.  In  nutshell,  the  tribunal  consists  of  a
former Judge as Chairman, one member who  has  held  high  office  of  Joint
Registrar in the department and the  other  member  either  with  the  legal
background or a person closely associated with  cooperative  movement.   We,
thus, do not find any fault with this provision as well.

15.   In so far as Section 77 (6) of the Act is concerned,  it  gives  power
to the State Government to terminate the appointment of the  Chairman  or  a
member if, in its opinion, such Chairman or Member is  unable  or  unfit  to
perform the duty of his office. Thus, this power  is  given  only  when  the
State Government forms such an opinion about the inability or  unfitness  of
such Chairman or Member  to perform the duties of his office.  This  opinion
may be subjective but has to be based  on  objective  consideration/material
on record. Since the State Government is the appointing authority, power  to
remove has to necessarily vest in the appointing authority.  It  is  not  an
omnibus  or  unguided/uncanalyzed  power  conferred  upon  the   Government.
Further, the decision is always subject to  judicial  review.   In  a  given
case if the power is exercised arbitrarily or without any  material  on  the
basis of which such an opinion is formed, it can be remedied  by  the  court
of law. It is further significant to  mention  that  proviso  to  this  sub-
section (6) of Section 77 provides an additional safeguards  which  mandates
following procedure in consonance  with  principle  of  natural  justice  by
giving reasonable opportunity  of   show  cause  against  such  termination.
Thus, when such an action is  contemplated,  the  Government   is  under  an
obligation to issue show cause notice which would  necessarily  contain  the
reasons/material on the basis of which,  a  belief  is  nurtured  that  such
Chairman or Member would be unable or  unfit  to  continue  to  perform  the
duties of his office. It would be open to the noticee to refute the same  by
giving suitable reply.  Final opinion would be formed only  after  eliciting
and considering the defence. Therefore, we see no  reason  to  hold  such  a
provision as unconstitutional. In fact, in the written submissions filed  by
the petitioner, there is no plea or ground taken by the  petitioner  on  the
basis of which  the  petitioner  seeks  to  condemn  these  provisions.  We,
therefore, reject  the prayer of the petitioner qua on Section  77  (3)  (b)
and Section 77 (6) of the Act as well.

16.   Having regard to our aforesaid discussion,  various  arguments  raised
by the petitioner based on the judgments cited by him are of no  benefit  as
those judgments have no applicability. No  doubt  the  Registrar  exercising
powers under Section 48 of the Bihar and Orissa  Cooperative  Societies  Act
is held to be a Court. It was so stated in the following manner :

                  “It will be noted from the above that the jurisdiction  of
           the ordinary civil and revenue Courts of the land is ousted under
           S.57 of the Act in case of disputes  which  fell  under  S.48.  A
           Registrar exercising powers under S.48 must, therefore,  be  held
           to discharge the duties which would otherwise have fallen on  the
           ordinary civil and revenue Courts of the land. The Registrar  has
           not merely the trappings of a Court but in many  respects  he  is
           given the same powers as are given to ordinary  civil  Courts  of
           the land by the Code of Civil Procedure including  the  power  to
           summon  and  examine  witnesses  on  oath,  the  power  to  order
           inspection of  documents,  to  hear  the  parties  after  framing
           issues, to review his own order and even  exercise  the  inherent
           jurisdiction of Courts mentioned in S.151 of the  Code  of  Civil
           Procedure. In such a case there is no difficulty in holding  that
           in adjudicating upon a dispute referred under S.48  of  the  Act,
           the Registrar is to all intents and purposes, a Court discharging
           the same functions and duties in the same manner as  a  Court  of
           law is expected to do.”




However, it does not necessarily follow from that the  Registrar  exercising
such powers has to be necessarily a person with  judicial/legal  background.
That was not even an issue in the aforesaid case.

17.   In so far as judgment in the case of Mukrigopalan  is  concerned,  the
Court therein discussed the power of  the  appellate  authority  constituted
under Section 18 under Kerala  Building  Lease  Rent  Control  Act.  In  the
instant case, the appellate authority is the tribunal which is headed  by  a
judicial person. The judgment in R.Gandhi  (supra)  again  pertains  to  the
National Company Law Tribunal and the law stated  therein,  emphasizing  the
need for person with judicial background, is in the context of  a  tribunal.
Same is  the  position  in  the  matter  of  Gujarat  Revenue  Tribunal  Bar
Association case (supra).  In so far as Namit Sharma (supra)  is  concerned,
much of what is stated  therein  is  watered  down  in  the  decision  dated
September 3, 2013 rendered in the Review  Petition  (C)  No.  2309  of  2012
titled Union of India v. R.Gandhi. The Court  has  gone  to  the  extent  of
holding    that    CIC    is    not     discharging     judicial     duties.


18.   We would like to point out that such quasi judicial powers  are  given
even to the Election Commission under  the  Representation  of  People  Act,
1951 in a matter where it decides as to  whether  to  register  a  political
party or not. This was  so  made  clear  in  the  case  of  Indian  National
Congress (I) vs. Institute of Social  Welfare  &  Ors.  2002  (5)  SCC  685.
Notwithstanding that Election Commission under Section 29-A of the said  Act
is required to act judicially and the act of Commission, in  that  capacity,
is quasi judicial, nobody  has  ventured  to  say  that  such  functions  be
discharged only by a person with judicial/legal background.

19.   Having determined the question raised, we would like to emphasize  the
need for appointment of  suitable  persons  not  only  as  Registrar,  Joint
Registrar etc. but as Chairman and members of the tribunal  as  well.  While
discharging quasi-judicial functions Registrar, Joint Registrars  etc.  have
to keep in mind that they have  to  be  independent  in  their  functioning.
They are also expected to acquire necessary expertise  to  effectively  deal
with the disputes coming before them. They are supposed to be  conscious  of
competing rights in order to decide the case justly and fairly and  to  pass
the orders which are legally sustainable. In this behalf, we would  like  to
refer  to  judgment  dated  3.9.2013  passed  in  the  Review  Petition  (C)
No.2309/2012 (Namit Sharma case).  In that  case,  one  unfortunate  feature
that was noted was that experience over the years has shown that the  orders
passed  by  Information  Commissions  have,  at  times,  gone   beyond   the
provisions of the Right to Information Act and that Information  Commissions
have not been able to harmonise the conflicting interests indicated  in  the
preamble and other provisions of the Act. The reasons  for  this  experience
about the functioning of the Information Commissions could  be  either  that
the persons who do not answer the criteria mentioned in Sections  12(5)  and
15(5) have been appointed as Chief  Information  Commissioner  or  that  the
persons appointed even when they answer the aforesaid criteria, they do  not
have the required mind to balance the interests indicated in  the  Act.   It
was  therefore  insisted  that  experienced  suitable  persons   should   be
appointed  who  are  able  to  perform  their  functions   efficiently   and
effectively. In this behalf certain directions were given  and  one  of  the
directions was that while making recommendation for appointment of  CIC  and
Information Commissioners the Selection Committee must mention against  name
of each candidate recommended the facts to indicate his eminence  in  public
life ( which  is  the  requirement  of  the  provision  of  that  Act),  his
knowledge and experience in the particular field and  these  facts  must  be
accessible to the citizens as part of their right to information under  that
Act, after the appointment is made.

20.   Taking clue from the aforesaid directions,  and  having  gone  through
the similar dismal state of affairs  expressed  by  the  petitioner  in  the
instant petition about the functioning  of  the  cooperative  societies,  we
direct that the State Government shall, keeping in  mind  the  objective  of
the Act, the  functions  which  the  Registrar,  Joint  Registrar  etc.  are
required to perform and commensurate with  those,  appointment  of  suitable
persons shall be  made.  Likewise,  having  regard  to  the  fact  that  the
Chairman of the Tribunal is to be a judicial person,  namely,  Former  Judge
of the High Court  or the District Judge, we are of  the  opinion  that  for
appointment of the Chairman and the Members of the Tribunal, the respondent-
State is duty  bound  to  keep  in  mind  and  follow  the  mandate  of  the
Constitution Bench judgment of this Court in  R.Gandhi  (supra).  Thus,  for
appointment of the Chairman and Members of the Tribunal,  the  selection  to
these posts should preferably be made by the Public  Service  Commission  in
consultation with the High Court.

21.   As a result, subject to the aforesaid directions, this  Special  Leave
Petition is dismissed.

                                                           ………………………………………J.
                                                              (Anil R. Dave)
                                                           …………………………………….J.
                                                                 (A.K.Sikri)

New Delhi,
Dated: May 6, 2014

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.