Chintapalli Agency Taluk Arrack Sales co-Operative
Society L Vs. Secretary (Food And Agriculture) Govt. of Andhra Pradesh, Et
[1977] INSC 182 (28 September 1977)
GOSWAMI, P.K.
GOSWAMI, P.K.
SHINGAL, P.N.
SINGH, JASWANT
CITATION: 1977 AIR 2313 1978 SCR (1) 563 1977
SCC (4) 337
CITATOR INFO :
R 1981 SC 136 (22,23) 1986 SC 180 (48) F 1991
SC2137 (3,5)
ACT:
Andhra Pradesh Co-operative Societies Act,
1964, section 77(2)-Whether mandatory-Whether the orders passed in revision
invalid for non-compliance with s. 77(2) and non- affording an opportunity to
the person prejudicially affected-Scope of s. 77(2).
HEADNOTE:
The appellants are the registered societies
under the Andhra Pradesh Cooperative Societies Act and the area of operation,
as provided by the bye-laws, was for the entire taluk with a view to grant
arrack licences to them in respect of the arrack shops within the said taluk.
To spread the co- operative movement at the village level the trials, in the
various villages in the taluk, were also permitted to form their own village
co-operative societies and to ask for grant of licences of their village shops
in favour of the respective village societies and enter into the liquor trade.
After the village societies were registered on 4th October 1975, the Deputy
Registrar (Co-operative Societies), gave a notice to the appellants u/s. 16(5)
of the Andhra Pradesh Co-operative Societies Act 1964 calling upon them to
amend their bye-laws so as to restrict their area of operation only to the
taluk headquarters.
The revision petition filed by the
Chintapalli Agency Society against the said orders of Deputy Registrar was
allowed by the Registrar on 10-12-1975 directing the District Co-operative
Authorities to recommend the case of the appellants for grant of licence for
all the shops situated within the taluk for the excise year 1975-76 ending with
30th September 1976. As the licences had already been granted in favour of the
village societies, the orders could not be given effect to for the year
1975-76. However, the licence was granted for the year 1976-77 ending with 30th
September 1977 in favour of the appellants. The village societies preferred
revision petitions under s. 77 of the Act against the orders of the Registrar
dated 10-12-1975 before the Government. On the very day. namely, 6-10-1976 when
the respondent-village societies filed their revision petitions before the
Government, the appellants also filed an application before the Government
disputing the claim of the village societies followed by another application
dated 28-10-1976. On 5-11-1976, the appellants prayed to the Government for an
opportunity to file their counter in the revision petition filed by the
respondent-village societies.
The Government, however, without any notice
to the appellants passed final orders on 4-12-1976 allowing the two revision
petitions filed by the village societies and set aside the orders of the
Registrar dated 10-12-1975. The Government also "requested" the
Excise Superintendent, Visakhapatnam, to take action u/s. 32 of the Andhra
Pradesh Excise Act 1968 for withdrawal of the licence already granted in favour
of the appellants and to issue a fresh licence amending the area of operation
restricting it only to Chintapalli village. The writ petitions filed by the
appellants were dismissed by a common judgment dated 27th January 1977 by the
Andhra Pradesh High Court.
Allowing the appeals by special leave, the
court
HELD : (1) Section 77(2) of the Andhra
Pradesh Co-operative Societies Act 1964 is a mandatory provision. The view of
the High Court that this provision can be by-passed by resort to belying into
correspondence between the appellant and the Government is not correct; The
minimal requirement u/s. 77(2) is a notice informing the opponent about the
application and affording him an opportunity to make his representation against
whatever has been alleged 564 in his petition. It is true that a personal
hearing is not obligatory but the minimal requirement of the principles of
natural justice which are ingrained in s. 77(2) is that the party whose rights
are going to be affected and against whom some allegations are made and some
prejudicial orders are claimed should have a written notice of the proceedings
from the authority disclosing the grounds of complaint or other objection
preferably by furnishing a copy of the petition on which action is contemplated
in order that a proper and effective representation may be made. This minimal
requirement can on no account be dispensed with by relying upon the principle
of absence of prejudice or imputation of certain knowledge to the party against
whom action is sought for.
In the instant case the impugned order of the
Government is invalid being in the teeth of s. 77(2) of the Act and in
violation of the principles of natural justice. Even though the appellant may
somehow get a copy of the application or the appellant may have, on its own
motion, submitted certain representations, the duty of a quasi-judicial
authority, as the Government undoubtedly is, in disposing of a matter u/s.
77, could not be avoided in affording the
appellant an opportunity to make representations. This requirement u/s 77(2)
cannot be considered as an empty formality and sub- s.(2) of s. 77 has to be
complied with by the Government.
[569 H. 570 A-D] (2) It is not correct that
the Registrar could not exercise powers u/s. 77 in examining the correctness,
legality or propriety of the proceedings initiated by the Deputy Registrar u/s.
16(5) of the Act and that the Registrar's order in revision is, a nullity. In
exercise of the powers conferred by s. 3 of the Act, the Governor of the Andhra
Pradesh has conferred, inter alia, powers u/s. 16 on the Deputy Registrar of
Co-operative Societies in charge of the Divisions. It was competent for the
Deputy Registrar to issue the notice u/s. 16(5) to the appellants. Section 3(1)
of the Act provides for the appointment of Registrars and "other
persons". Under s. 3(2) "every other person appointed under subs. (1)
"shall exercise such powers of the Registrar under the Act as the
Government may confer on him under the general superintendence of the
Registrar" The Deputy Registrar belongs to the category of "other
persons" appointed under sub-s. (1) of s. 3. When, therefore, powers of
the Registrar are conferred upon. him he has to act "under the general
superintendence of the Registrar" as specifically mentioned in sub-s. (2)
of s. 3. Under the scheme of the Act "any other person" appointed
under s. 3(1) on whom Government confers powers under s. 3(2) is not equated
with the Registrar. The Deputy Registrar is an officer subordinate to the
Registrar for all purposes and has to act under the supervision of the
Registrar. It is true that the power u/s. 16 is that of the Registrar but the
Deputy Registrar exercises that power as empowered by the Government but always
"under the general superintendence of the Registrar". Again, under s.
76(2) any order passed in pursuance of the power so exercised u/s. 16 is
appealable to the Registrar as order passed by "any other officer"
appointed u/s 3(1). [568 C-D, G, 569 A-C, E, F] Roop Chand v. State of Punjab
[1963] Suppl. (1) SCR 539, distinguished.
(3) Any request of the Government to a
subordinate authority is tantamount to a positive direction or order and it
will be difficult for the subordinate authority to disregard the same. [The
court, however, expressed no opinion as to whether Government in exercising
revision power u/S. 77 of the Act was competent to issue directions to the
Excise Department in the matter of settlement of arrack shops. The court also
left open to the Government to notify the policy with regard to the settlement
of arrack shops as it may deem fit.] [570 E-G]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 503-504 of 1977.
Appeals by Special Leave from the Judgment and
Order dated 27-1-77 of the Andhra Pradesh High Court in Writ Petitions Nos.
3967 and 3987/76 respectively.
A. Venkataramana, K. Rajendra Chaudhary and
Mrs. Veena Devi Khanna for the Appellant.
P. Parmeswara Rao and G. Narayana Rao for
Respondent No.
1.
565 G.Yenkatarama Sastry (In CA No. 503/77
for Respondent No. 1.
G.Yenkatarama Sastry (In CA No. 503/77 for
Respondent No. 5.
The Judgment of the Court was delivered by
GOSWAMI, J. Chintapalli Agency Taluk Arrack Sales Co- operative Society Ltd.
and the Paderu Taluk Tribal Arrack Sales Co-operative Society Ltd. were
registered as Co- operative Societies by the Deputy Registrar of Co-operative
Societies, Yelamanchili. The question raised in this case by these two
Societies has been decided by a common judgment of the High Court of 27th
January, 1977. It is sufficient to state the facts appertaining to Chintapalli
Agency Taluk Arrack Sales Co-operative Society Ltd. (briefly the appellant) as
these are common.
The appellant was registered by the Deputy Registrar
of Co- operative Societies, Yelamanchili, on 26th September, 1975.
The area of operation of the appellant was
provided in its bye-laws was for the entire taluk with a view to grant arrack
licences to it in respect of all the arrack shops within the said taluk. There
was, however, an infection of the cooperative movement and it appears that
trials in the various villages in the taluk were. also encouraged by the
Cooperative Department to form their own village cooperative societies and to
ask for grant of licences of their village shops in favour of the respective
village societies instead of granting all the licences of the taluk to a single
society, such as the appellant. With this purpose of initiating them into the
liquor trade, the village societies were registered on 4th October, 1975.
Having thus registered the village
co-operative societies (briefly the village societies), the Deputy Registrar of
Co- operative Societies gave a notice to the appellant under section 16(5) of
the Andhra Pradesh Co-operative Societies Act, 1964, calling upon it to, amend
its bylaws so as to restrict its area of operation only to the taluk head-
quarters.
The underlying idea behind such a notice was
that the appellant should be given the licence in respect of shops situated in
the taluk headquarters while licences in respect of shops Situated within the
villages should be granted to the respective village societies which have since
been registered.
The appellant filed a petition of revision
before the Registrar of Co-operative Societies challenging the above notice.
The petition was allowed by the Registrar by his order dated 10th December ,
1975. In the said order the Registrar not only set aside the aforesaid notice
of the Deputy Registrar but also directed the District Co-operation authorities
to recommend the case of the appellant for grant of licences for all the shops
situated within the taluk for the excise year 1975-76 ending 30th September,
1976. This direction, however, could not be 566 implemented since by that time
the village societies had already been granted licences in respect of shops
situated in the respective villages. The appellant's licence was confined to
the area in taluk headquarters 'for the year 1975-76.
With the said recommendation staring in the
face, the village societies apprehended trouble in the year 1976-77 and filed
writ petitions in the High Court challenging the Registrar's order of 10th
December, 1975. Indeed the licences for 1976-77 were granted to the appellant
for the entire area as recommended by the Registrar. No stay orders could be
obtained by the respondents and hence the licences, for 1976-77 continued with
the appellant.
The village societies also, almost
simultaneously approached the Government by way of revision under section 77 of
the Andhra Pradesh Co-operative Societies Act, 1964 (briefly the Act) against
the order of the Registrar of 10th December, 1975. On 6th October 1970, the
Government suspended the operation of the order of the Registrar dated 10th
December 1975 and further directed the Collector (Cooperation) Visakhapatnam to
recommend the case of the village societies to the Excise Superintendent for
the issue of licences for the excise year 1976-77.
The appellant filed a writ petition in the
High Court against the aforesaid order of the Government dated 6th October
1976. The High Court issued Rule nisi, but declined to stay the impugned order.
We are not concerned with this writ petition which was dismissed as
infructuous.
On the very day, viz., 6th October, 1976,
when the respondents filed their revision before the Government, the appellant
filed an application to the Government disputing the claim of the village
societies. The appellant also field before the Government a similar application
on 28th October, 1976. On 5th November, 1976, the appellant prayed to the
Government for an opportunity to file counter in the revision petition filed by
the respondents. The Government, however, without any notice to the appellant,
passed final orders on 4th December, 1976, allowing the two review petitions
filed by the village societies and set aside the order of the Registrar dated
10th December, 1975.
Under the aforesaid order the Government
"requested" the Excise Superintendent, Visakhapatnam, to take action
under section 32 of the Andhra Pradesh Excise Act, 1968, for withdrawal of the
licence already granted in favour of the appellant and to issue a fresh licence
amending the area of operation restricting it only to Chintapalli village. The
Excise Superintendent was also requested to issue thereafter fresh individual
licences to all the village level societies in the Chintapalli taluk for arrack
shops existing in their respective villages. It was, however. mentioned in that
order that the appellant should have opportunity to represent its grievances,
if any, before the Divisional Co- operative Officer, Yalamanchili, who issued
the notice under section 16(5) of the Act. The appellant felt aggrieved by the,
above order of the Government and filed two writ petitions Nos. 3947 and 567
3987 of 1976, in which the impugned order was passed by the High Court and with
which alone we are concerned in these appeals.
The short question that arises for decision
is whether the order of the Government in revision which was passed under
section 77 of the Act is invalid for non-compliance with section 77(2) which
provides that no order prejudicial to any person shall be passed under
sub-section (1) unless such person has been given an opportunity of making his
representation. It is submitted that the Government did not afford any
opportunity to, the appellant for making representation before it. The High
Court rejected this plea on the ground that from a perusal of the voluntary
applications filed by the appellant it was clear that the appellant had anyhow
met with the points urged by the respondents in their revision petition before
the Government. We are, however, unable to accept the view of the High Court as
correct.
The question of amendment of the bye-laws is
intimately connected in this case with the abridgement of the operation of
business directly affecting the existing licences which had already been
granted to, the appellant, Even though the appellant may somehow get a copy of
the application or the appellant may have, on its own motion, submitted certain
representations, the duty of a quasi-judicial authority, as the Government
undoubtedly is, in disposing of a matter under section 77, could not be avoided
in affording the appellant an opportunity to make representation. This requirement
under section 77(2) cannot be considered as an empty formality and subsection
(2) of section 77 has to be complied with by the Government. This has not been
done in this case.
It is submitted on behalf of the respondents
that the order of the Registrar is a nullity for the reason that the Registrar
could not entertain the revision petition against the order of the Deputy
Registrar who has been empowered to exercise the functions, and powers of the
Registrar under section 16.
Section 2(n) of the Act defines Registrar as
follows " 'Registrar' means the Registrar of Co- operative Societies
appointed under section 3(1) and includes any other person on whom all or any
of the powers of the Registrar under this Act are conferred".
Section 3 may be read "3(1) There shall
be appointed a Registrar of Co-operative Societies for the State and as many
other persons as the Government think fit for the purposes of this Act.
(2)Every other person appointed under sub-
section (1) shall exercise, under the general superintendence of the Registrar,
such powers of the Registrar, under this Act as the Government may, from time
to time, confer on him".
568 In exercise of the powers conferred by
section 3 of the Act the Governor of the Andhra Pradesh has conferred, inter
alia, powers under section 16 on the Deputy Registrars of Co-operative
Societies in-charge of Divisions. It was therefore competent for the Deputy
Registrar to issue the notice under section 16(5) to the appellants.
The question next arises whether the Registrar
could entertain a petition under section 77 when the proceedings under section
16(5) were questioned by the appellant. it is strenuously submitted that the
power exercised by the Deputy Registrar under section 16 was the power of the
Registrar delegated to him and therefore any order passed in those proceedings
would lie the order passed by the Registrar and, therefore, the Registrar was
not competent to entertain a petition of revision against what may be described
as his own order. In this context the respondents rely upon a decision of this
Court in Root) Chand v. State of Punjab (1) in support of the above submission.
We may first examine the scheme of the
present Act with which we are concerned. The appointment of the Registrar and
"other persons" is provided for under section 3(1).
Under section 3(2) " every other person
appointed under sub- section (1)" shall exercise such powers of the
Registrar under the Act as the Government may confer on him "under the
general superintendence of the, Registrar". It is, therefore, clear that
the Deputy Registrar belongs to the category of "other persons"
appointed under sub-section (1) of section 3. When, therefore, powers of the,
Registrar are conferred upon him be has to act "under the general
superintendence of the Registrar" as specifically mentioned in subsection
(2) of section 3.
Again, we may refer to section 76 of the Act
which provides for appeals. Under section 76(2) any person or society aggrieved
by any decision under section 6, refusal to register a society under section 7
or amendment of the bye- laws under section 16, etc. may appeal to the
Government if the order is passed by the Registrar [section 76(2) (i)] and to
the Registrar if the decision is of any other person [section 76 (2) (ii) ].
The Explanation in sub-section (2) of section 76 provides that the Registrar
includes the Additional Registrar, the Joint Registrar, the District Collector
and the Special Cadre Deputy Registrar working as Personal Assistant to the
Collector, but not the Deputy Registrar of Co-operative Societies in-charge of
the Divisions. Thus under the scheme of the Act, "any other person"
appointed under section 3 (1) on whom Government confers powers under section 3
(2) is not equated with the Registrar. It is manifest that the Deputy Registrar
is an officer subordinate to the Registrar for all purposes and has to act
under the supervision of the Registrar. Any order passed by the Deputy
Registrar of Co-operative Societies under section 16 is appealable to the
Registrar under section 76(2) (ii).
Section 77 provides for the power of revision
and only the Registrar and the Government have this concurrent Flower.
This power can be exercised either on an
application by a party or suo moto. Power under section 77 is not conferred on
the Deputy Registrar (1) [1963] Supp. (1) SCR 530.
569 whereas power under section 16 along with
some other powers is conferred on the Deputy Registrar. Section 77 provides
that the Registrar may of his own motion or on an application made to him call
for and examine the record of any officer subordinate to him in respect of any
proceeding, not being a proceeding wherefrom appeal lies to the Tribunal under
section 76(1) to satisfy himself as to the regularity of such proceeding, or
the correctness, legality or propriety of any decision passed or order made
therein and pass any of the appropriate orders specified in section 77(1). This
power of the Registrar is in accord with the preeminent position accorded by
the Act to the Registrar under whose supervision "every other person
appointed under section 3(1)" may function and act. It is, therefore, not
correct that the Registrar could not exercise power under section 77 in
examining the correctness, legality or propriety of the proceedings initiated
by the Deputy Registrar under section 16(5) of the Act.
Roop Chand's case (supra) is clearly
distinguishable since there under section 41(1) of the East Punjab Holdings
(Consolidation and Prevention of Fragmentation). Act, 1948, the State
Government appoints persons and delegates its powers or functions under the Act
to such officers. When, therefore, an officer acts as a delegate of the State
Government lie exercises statutory power of appeal of the Government under
section 21 (4) of the Act. This Court observed ,in that case ".... such a
power when delegated remains the power of the Government, for the Government
can only delegate the power given to it by the statute and cannot create an
independent power in the officer. When the delegate. exercise the power, he
does so for the Government".
In the present case it is true the power
under section 16 is that of the Registrar but the Deputy Registrar exercises
that power as empowered by the Government but always "under the general
superintendence of the Registrar". Again, under section 76(2) any order
passed in pursuance of the power so exercised under section 16 is appealable to
the Registrar as an order passed by "any other officer" appointed
under section 3(1). The scheme of the Consolidation Act which this Court had to
deal with in Roop Chand's case (supra) is different from that of the
Co-operative Act. The submission of counsel that the Registrar's order in
revision is a nullity is devoid of substance.
As mentioned earlier in the judgment the
Government did not give any notice communicating to the appellant about
entertainment of the application in revision preferred by the respondents. Even
though the appellant bad filed some representations, in respect of the matter,
it would not absolve the Government from loving notice to the appellant to make
the representation against the claim of the respondents. The minimal
requirement under section 77(2) is a notice informing the opponent about the
application and affording him an opportunity 570 to make his representation
against whatever has been alleged in his petition. It is true that a personal
hearing is not obligatory but the minimal requirement of the principles of
natural justice which are ingrained in section 77(2) is that the party whose
rights are going to be affected and against whom some allegations are made and
some prejudicial orders are claimed should have a written notice of the
proceedings from the authority disclosing grounds of complaint or other
objection preferably by furnishing a copy of the petition on which action is
contemplated in order that a proper and effective representation may be made.
This minimal requirement can no on account be dispensed with by relying upon
the principle of absence of prejudice or imputation of certain knowledge to,
the party against whom action is sought for.
It is admitted that no notice whatever had
been given by the Government to the appellant. There is, therefore, clear
violation of section 77(2) which is a mandatory provision.
We do not agree with the High Court that this
provision can by-passed by resort to delving into correspondence between the
appellant and the Government. Such non-compliance with a mandatory provision
gives rise to unnecessary litigation which must be avoided at all costs.
The impugned order of the Government is
invalid being in the teeth of section 77(2) of the Act and in violation of the
principles of natural justice and the High Court should have quashed the same
under Article 226 of the Constitution. We, therefore, set aside the judgment of
the High Court as well as the order of the Government dated 4th December, 1976.
Since we are allowing these appeals by
setting aside the order of the Government, we express no opinion as to whether
the Government in exercising revision power under section 77 of the Act was
competent to issue directions to the Excise.
Department in the matter of settlement of
arrack shops. It was submitted, however, that there was no direction in the
order which was only by way of 'request" and suggestion. We are, however,
unable to accept this submission as correct.
Any "request" of the Government to
a subordinate authority is tantamount to a positive direction or order and it
will be difficult for the subordinate authority to disregard the same.
Normally we would have remanded the revision
petition to be disposed of by the Government in accordance with law and in the
light of this judgment but since the period of the arrack licences will expire
on 30th September, 1977, no useful purpose would be served by a remand. It will
however, be open to the Government to notify its policy with regard to the
settlement of arrack shops in future in such appropriate manner as it may deem
fit.
This judgment will govern both the appeals.
Both the appeals are allowed, but there will be no. order as to costs,.
S. R. Appeal allowed.
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