Sunday, 5 June 2016

Leading judgment on inherent powers of tribunals

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

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, 
                                                                                               
VERSUS
  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.
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, 1957
carried 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:
“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
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.
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


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