statutory appellate Authority that has been conferred with
jurisdiction to decide proceedings under a statute, it is also clothed
with such ancillary or incidental powers as are necessary to
discharge its functions effectively for the purposes of doing justicebetween the parties. The reliance placed by the learned Counsel
for the petitioners on the decision of the Supreme Court in Income
Tax Officer (supra) in that regard is apposite. In para 4 thereof, it
has been observed by the Supreme Court as under:
“4.....................................................................
It is a firmly established rule that an express
grant of statutory power carries with it by
necessary implication to authority to use all
reasonable means to make such grant effective
(Sutherland Statutory Construction, Third
Edition, Articles 5401 and 5402). 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. I at page 88, it has
been stated:
“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 essentiallynecessary to its execution. Cui jurisdictio
data est, ea quoqe concessa esse
vindenture, since guibus 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
impliedy conveyed by the enactment, for
the power would be useless if it could
not be enforced.”
The judgment of the Supreme Court in Radhakrishna
Mani Tripathi (supra) proceeds on aforesaid principle.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 2300 OF 2015
PETITIONERS:
Shri Omprakash Nathuji Vaidhya,
V The Divisional Joint Registrar, Cooperative Societies,
CORAM: A.S. CHANDURKAR, J.
DATED: 14thDECEMBER, 2015.
Citation: 2016(2) MHLJ 936
1. Rule. Heard finally with the consent of the learned
Counsel for the parties.
2. The question that arises for consideration is whether
the Divisional Joint Registrar entertaining an appeal under Section
152 of the Maharashtra Cooperative Societies Act, 1960 (for
short, the said Act) having dismissed the appeal in default has the
jurisdiction and power to restore the same.
3. On the basis of an enquiry report submitted under
Section 83 of the said Act, the Deputy Registrar, Cooperative
Societies passed further orders under Section 88 of the said Act.
The Enquiry Officer submitted his report on 21112011. Being
aggrieved by aforesaid enquiry report, the petitioners filed an
appeal under Section 152 of the said Act before the Divisional
Joint Registrar, Cooperative Societies. It appears that on a few
Unnamalai decided on 1922003. It was, therefore, submitted
that the respondent No.1 ought to be directed to reconsider the
application for restoration.
5. Shri S. B. Ahirkar, learned Assistant Government
Pleader for respondent Nos.1 & 2 supported the impugned order.
It was submitted that due to absence of the petitioners and their
Counsel before the appellate Authority, the order dismissing the
appeal for want of prosecution was justified.
Shri A. R. Patil, learned Counsel for respondent No.4,
however, fairly stated that by applying general principles under
the Code of Civil Procedure, 1908, the appellate Authority would
have the jurisdiction to entertain an application for restoration of
the appeal. It was, however, submitted that the order dismissing
the proceedings for want of prosecution was justified. He brought
to the notice of the Court the judgment of the Supreme Court in
Radhakrishna Mani Tripathi vs. L.H. Patel and another (2009)2
SCC 81 wherein it was held that the power to proceed exparte
under Rule 22 of the Industrial Disputes (Bombay) Rules, 1957carried with it the power to recall an exparte order. He also
referred to the judgment of the learned Single judge in Lokmanya
Nagar Priyadarshini & ors. vs. State of Maharashtra and ors
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 2300 OF 2015
PETITIONERS:
Shri Omprakash Nathuji Vaidhya,
V The Divisional Joint Registrar, Cooperative Societies,
CORAM: A.S. CHANDURKAR, J.
DATED: 14thDECEMBER, 2015.
Citation: 2016(2) MHLJ 936
1. Rule. Heard finally with the consent of the learned
Counsel for the parties.
2. The question that arises for consideration is whether
the Divisional Joint Registrar entertaining an appeal under Section
152 of the Maharashtra Cooperative Societies Act, 1960 (for
short, the said Act) having dismissed the appeal in default has the
jurisdiction and power to restore the same.
3. On the basis of an enquiry report submitted under
Section 83 of the said Act, the Deputy Registrar, Cooperative
Societies passed further orders under Section 88 of the said Act.
The Enquiry Officer submitted his report on 21112011. Being
aggrieved by aforesaid enquiry report, the petitioners filed an
appeal under Section 152 of the said Act before the Divisional
Joint Registrar, Cooperative Societies. It appears that on a few
occasions, the appellants and their Counsel were not present
before the Appellate Authority and hence on 1742014 the
Divisional Joint Registrar dismissed said appeal in default. The
petitioners moved an application for restoration of the said appeal
alongwith an application for condonation of delay. However, on
1232015 the Divisional Joint Registrar, Cooperative Societies
held that as there was no provision for restoration of the
proceedings, the same could not be restored. This order is under
challenge in the present writ petition.
4. Shri D. V. Siras, learned Counsel for the petitioners
submitted that the Divisional Joint Registrar had necessary
jurisdiction and the power to restore the appeal that was dismissed
in default. It was submitted that the Divisional Joint Registrar
having been conferred statutory power to entertain an appeal
under Section 152 of the said Act, said Authority by necessary
implication had the power to make the grant of such statutory
power effective. In absence of any bar in the said Act prohibiting
the appellate Authority from restoring proceedings dismissed in
default, it could not be said that there was no power to do so. The
learned Counsel placed reliance on the judgment of the Supreme
Court in Income Tax Officer, Cannanore v. M. K. Mohammed Kunhi
AIR 1969 SC 430 and judgment of learned Single Judge of the
Madras High Court in the case of Divisional Personnel Officer Vs.before the Appellate Authority and hence on 1742014 the
Divisional Joint Registrar dismissed said appeal in default. The
petitioners moved an application for restoration of the said appeal
alongwith an application for condonation of delay. However, on
1232015 the Divisional Joint Registrar, Cooperative Societies
held that as there was no provision for restoration of the
proceedings, the same could not be restored. This order is under
challenge in the present writ petition.
4. Shri D. V. Siras, learned Counsel for the petitioners
submitted that the Divisional Joint Registrar had necessary
jurisdiction and the power to restore the appeal that was dismissed
in default. It was submitted that the Divisional Joint Registrar
having been conferred statutory power to entertain an appeal
under Section 152 of the said Act, said Authority by necessary
implication had the power to make the grant of such statutory
power effective. In absence of any bar in the said Act prohibiting
the appellate Authority from restoring proceedings dismissed in
default, it could not be said that there was no power to do so. The
learned Counsel placed reliance on the judgment of the Supreme
Court in Income Tax Officer, Cannanore v. M. K. Mohammed Kunhi
AIR 1969 SC 430 and judgment of learned Single Judge of the
Unnamalai decided on 1922003. It was, therefore, submitted
that the respondent No.1 ought to be directed to reconsider the
application for restoration.
5. Shri S. B. Ahirkar, learned Assistant Government
Pleader for respondent Nos.1 & 2 supported the impugned order.
It was submitted that due to absence of the petitioners and their
Counsel before the appellate Authority, the order dismissing the
appeal for want of prosecution was justified.
Shri A. R. Patil, learned Counsel for respondent No.4,
however, fairly stated that by applying general principles under
the Code of Civil Procedure, 1908, the appellate Authority would
have the jurisdiction to entertain an application for restoration of
the appeal. It was, however, submitted that the order dismissing
the proceedings for want of prosecution was justified. He brought
to the notice of the Court the judgment of the Supreme Court in
Radhakrishna Mani Tripathi vs. L.H. Patel and another (2009)2
SCC 81 wherein it was held that the power to proceed exparte
under Rule 22 of the Industrial Disputes (Bombay) Rules, 1957carried with it the power to recall an exparte order. He also
referred to the judgment of the learned Single judge in Lokmanya
Nagar Priyadarshini & ors. vs. State of Maharashtra and ors
2007(1) BCR 929 and Savitri Chandrakesh Pal vs. State of
Maharashtra and others 2009 (4) Mh.L.J. 406 in that regard.
6. I have given due consideration to the respective
submissions and I have gone through the documents filed on
record. Section 152 of the said Act confers jurisdiction on the
Divisional Joint Registrar to entertain an appeal against an order
or decision under Sections stated therein. Section 152 (3A) of the
said Act empowers the Appellate Authority to pass such interim
orders as it deems fit to prevent the ends of justice being defeated.
Rule 106 of the Maharashtra Cooperative Societies Rules, 1961
prescribe the procedure for presentation and disposal of appeals
under Section 152 of the said Act. The manner in which an appeal
has to be entertained and decided has been specified.
7. It is a settled principle that where a Tribunal or
statutory appellate Authority that has been conferred with
jurisdiction to decide proceedings under a statute, it is also clothed
with such ancillary or incidental powers as are necessary to
discharge its functions effectively for the purposes of doing justice
between the parties. The reliance placed by the learned Counsel
for the petitioners on the decision of the Supreme Court in Income
Tax Officer (supra) in that regard is apposite. In para 4 thereof, it
has been observed by the Supreme Court as under:
Maharashtra and others 2009 (4) Mh.L.J. 406 in that regard.
6. I have given due consideration to the respective
submissions and I have gone through the documents filed on
record. Section 152 of the said Act confers jurisdiction on the
Divisional Joint Registrar to entertain an appeal against an order
or decision under Sections stated therein. Section 152 (3A) of the
said Act empowers the Appellate Authority to pass such interim
orders as it deems fit to prevent the ends of justice being defeated.
Rule 106 of the Maharashtra Cooperative Societies Rules, 1961
prescribe the procedure for presentation and disposal of appeals
under Section 152 of the said Act. The manner in which an appeal
has to be entertained and decided has been specified.
7. It is a settled principle that where a Tribunal or
statutory appellate Authority that has been conferred with
jurisdiction to decide proceedings under a statute, it is also clothed
with such ancillary or incidental powers as are necessary to
discharge its functions effectively for the purposes of doing justice
between the parties. The reliance placed by the learned Counsel
for the petitioners on the decision of the Supreme Court in Income
Tax Officer (supra) in that regard is apposite. In para 4 thereof, it
has been observed by the Supreme Court as under:
“4.....................................................................
It is a firmly established rule that an express
grant of statutory power carries with it by
necessary implication to authority to use all
reasonable means to make such grant effective
(Sutherland Statutory Construction, Third
Edition, Articles 5401 and 5402). 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. I at page 88, it has
been stated:
“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
vindenture, since guibus 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
impliedy conveyed by the enactment, for
the power would be useless if it could
not be enforced.”
The judgment of the Supreme Court in Radhakrishna
It is a firmly established rule that an express
grant of statutory power carries with it by
necessary implication to authority to use all
reasonable means to make such grant effective
(Sutherland Statutory Construction, Third
Edition, Articles 5401 and 5402). 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. I at page 88, it has
been stated:
“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
vindenture, since guibus 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
impliedy conveyed by the enactment, for
the power would be useless if it could
not be enforced.”
The judgment of the Supreme Court in Radhakrishna
Mani Tripathi (supra) proceeds on aforesaid principle.
8. Learned Single judge of the Madras High Court while
considering the question as to whether the appellate Authority
constituted under the Payment of Gratuity Act, 1972 had the
power to restore an appeal dismissed for want of prosecution held
that the appellate Authority had necessary incidental powers to
restore an appeal that had been dismissed for nonprosecution.
The decision in Lokmanya Nagar Priyadarshani and others (supra)
lays down certain parameters that are required to be followed by
an Authority while considering a stay application in an appeal or
revision. In Savitri Chandrakesh Pal (supra) similar procedural
guidelines to be followed by quasi judicial authority have been laid
down.
9. Thus, from the aforesaid it can be safely held that the
appellate Authority entertaining an appeal under Section 152 of
the said Act has the necessary jurisdiction and power to restore an
appeal that is dismissed for want of prosecution. Mere absence of
any such statutory provision would not have the effect of
preventing the appellate Authority from exercising such incidental
powers with which it is inherently clothed. The impugned order,
therefore, passed by respondent No.1 refusing to restore the
appeal that was dismissed in default is liable to be set aside.
8. Learned Single judge of the Madras High Court while
considering the question as to whether the appellate Authority
constituted under the Payment of Gratuity Act, 1972 had the
power to restore an appeal dismissed for want of prosecution held
that the appellate Authority had necessary incidental powers to
restore an appeal that had been dismissed for nonprosecution.
The decision in Lokmanya Nagar Priyadarshani and others (supra)
lays down certain parameters that are required to be followed by
an Authority while considering a stay application in an appeal or
revision. In Savitri Chandrakesh Pal (supra) similar procedural
guidelines to be followed by quasi judicial authority have been laid
down.
9. Thus, from the aforesaid it can be safely held that the
appellate Authority entertaining an appeal under Section 152 of
the said Act has the necessary jurisdiction and power to restore an
appeal that is dismissed for want of prosecution. Mere absence of
any such statutory provision would not have the effect of
preventing the appellate Authority from exercising such incidental
powers with which it is inherently clothed. The impugned order,
therefore, passed by respondent No.1 refusing to restore the
appeal that was dismissed in default is liable to be set aside.
10. In view of aforesaid discussion, the following order is
passed:
ORDER
(a) Order dated 1232015 passed by respondent No.1
refusing to entertain the application for restoring the appeal that
was dismissed in default is set aside.
(b) The respondent No.1 shall consider the application for
restoration of the appeal alongwith the prayer for condonation of
delay in accordance with law after giving due opportunity to all
the parties.
(c) Rule is made absolute in aforesaid terms with no order
as to costs.
JUDGE
passed:
ORDER
(a) Order dated 1232015 passed by respondent No.1
refusing to entertain the application for restoring the appeal that
was dismissed in default is set aside.
(b) The respondent No.1 shall consider the application for
restoration of the appeal alongwith the prayer for condonation of
delay in accordance with law after giving due opportunity to all
the parties.
(c) Rule is made absolute in aforesaid terms with no order
as to costs.
JUDGE
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