Hon'ble Vivek Kumar Birla,J.
Heard Sri H.R. Mishra, learned Senior Advocate assisted by Sri Neeraj Pandey, learned counsel for the petitioner and Sri Chandra Shekhar Singh, learned Additional Chief Standing Counsel for the State-respondents.
Petitioner-Tajpur Krishi Utpad Virpan Sahkari Samiti Ltd., Tajpur Mafi, Vikash Khand and District Moradabad (hereinafter referred to as the petitioner's society) has filed this writ petition against the order of the Deputy Registrar, Cooperative Societies, U.P. Moradabad Division, Moradabad dated 31st October, 2014, where-under the registration of the petitioner's society has been cancelled in exercise of powers under Section 76 of the U.P. Cooperative Societies Act, 1965 (hereinafter referred as the "Act, 1965"). The order is challenged on the ground that the same was not preceded by any order under Section 72/73 of Act, 1965 for winding up of the cooperative society and therefore, in view of the judgement of this Court in the case of Krishi Upaj Evam Vipdan Samiti Ltd. vs. State of U.P. & Another (Civil Misc. Writ C No. 59668 of 2012) decided on 7th November, 2013, no order under Section 76 of Act, 1965 should have been made.
Sri Chandra Shekhar Singh, learned Additional Chief Standing Counsel for the State-respondents submits that it is not necessary, than an order under Section 72 of Act, 1965 for winding up of the cooperative society, to proceed for cancellation of registration of the society under Section 76 of Act, 1965. He explains that both the orders can be simultaneous and can be part of one common order. He further submits that against the order of winding up of the cooperative society made under Section 72, an appeal under Section 98 (1) (i) of Act, 1965 has been provided for. Therefore, this Court may insist upon the petitioner to avail the statutory alternative remedy in the facts of the case.
Sri H.R. Mishra, learned Senior Advocate on behalf of the petitioner submits that against the order of winding up of a society made in exercise of powers under Section 72 of Act, 1965, an appeal is provided for under Section 98 of Act, 1965 but no appeal is provided against the order of cancellation of the registration of a society under Section 76 of Act, 1965. He refers to Section 73 (3) Act, 1965 for the purpose that once an appeal is filed under Section 98 of Act, 1965, against an order of winding up made in exercise of powers under Section 72 of Act, 1965, further proceedings of winding up of a society are stayed automatically. He submits that in the facts of the case since there is no order in so many words directing winding up of the society under Section 72 of Act, 1965, and there are only passing references for the society being wound up, in the order of cancellation of registration of the society under Section 76 of Act, 1965, no alternative remedy is available to the petitioner in the facts of the case.
We have considered the submissions made by the learned counsel for the parties and have examined the records of the present writ petition.
It is settled law that right of an appeal is an statutory right and if the appeal against a particular order has not been provided for under the Statute, the High Court in exercise of powers under Article 226 of the Constitution of India cannot create a forum of appeal.
From reading of Section 76 of Act, 1965, it is apparent that it contemplates cancellation of registration of a cooperative society in two circumstances, (a) when an order of winding up has been made under Section 72 of Act, 1965, and the Deputy Registrar is of the opinion that it is not necessary to appoint a liquidator, (b) when the affairs of cooperative society in respect of which the liquidator has been appointed under Section 73 have been wound up, the Deputy Registrar may direct cancellation of the registration of the society.
For ready reference Section 76 of Act, 1965 is being quoted herein below:
"76. Cancellation of registration of a co-operative society.- Where in respect of a co-operative society which has been ordered to be wound up under Section 72, the Registrar is of opinion that it is not necessary to appoint a liquidator, or where the affairs of a co-operative society in respect of which a liquidator has been appointed under Section 73, have been wound up, the Registrar shall make an order cancelling the registration of the society and the society shall be deemed to be dissolved and shall cease to exist as a corporate body from the date of such order of cancellation."
From simple reading of aforesaid provision, it is apparent that Registrar can direct cancellation of registration of a society while making an order under Section 72 of Act, 1965 for winding up of the society after being satisfied that no liquidator is to be appointed in the facts of the case. In other case where winding up order has been made and liquidator has been appointed, such cancellation of the registration can be directed after the winding up proceedings are over.
Appeal against the order of registration is provided under Section 98 of Act, 1965. Section 98 (1) (i) of Act, 1965 reads as follows:
"98. Appeal against the awards, orders and decisions.---(1) An appeal against---------
........
(i)an order made by the Registrar under Section 72 directing the winding up of a co-operative society ; .........."
From simple reading of Section 98 (1) (i) of Act, 1965, an appeal has been provided for against the order made under Section 72 of Act, 1965 i.e. winding up of a cooperative society only. No appeal has been provided against an order of cancellation of the registration of the cooperative society. An order under Section 72 of Act, 1965 and an order under Section 76 lead to difference consequences and in the case of cancellation of registration of the society, the cooperative society ceases to exist in the eyes of law.
It is no doubt true that from reading of Section 76 of 1965, it can be said that an order under Sections 72 and 76 of Act, 1965 for winding up and for cancellation of the registration of a society under Section 76 of Act, 1965 can be made simultaneously in a given set of facts but the moot question is as to what happens to right of appeal and what happens to the statutory provisions contained under Section 73 (3) of Act, 1965 in such a situation. Section 73 (3) of Act, 1965 reads as follows:
"73. Liquidator. ---(1) ........
(3) Where an appeal is preferred under Section 98 against an order of winding up of a co-operative society passed under Section 72, the further winding up proceedings shall be stayed by the liquidator until the order is confirmed in appeal. :
Provided that the liquidator shall continue to have custody or control of the property, effects and actionable claims mentioned in sub-section (2) and have authority to take the steps referred to in that sub-section."
In our opinion, if the order is composite and since no statutory appeal is provided for against the order of cancellation of the registration of a society under Section 76 of Act, 1965, writ is a remedy available to the cooperative society. However, we are also conscious of the fact that cancellation of registration of a society is a consequential action taken with reference to the order made under Section 72 of Act, 1965. Unless an order of winding up of the cooperative society stands on record, there cannot be any order of cancellation of the registration of cooperative society. Therefore, the order of cancellation of registration of the cooperative society is squarely dependent upon the fate of the order made under Section 72 of Act, 1965. In both the circumstances, contemplated by Section 76 of Act, 1965. Having arrived at the said conclusion, we are of the considered opinion that the petitioner may be asked to file an appeal against the order impugned, as there are reasons and facts recorded for coming to the conclusion that the cooperative society was liable to be wound up. However, specific orders for winding up may not have been recorded and only the consequential order has been made.
Sri C.S. Singh, learned Additional Chief Standing Counsel has admitted that if the winding up order is set aside in an appeal, order of cancellation of the registration of the cooperative society would fall automatically and in that circumstance, registration of cooperative society shall stands restored.
For the aforesaid reasons, we feel that interest of substantial justice would be served in the facts of the case by providing that the petitioner may file an appeal under Section 98 (1) (i) of Act, 1965 against the order impugned in the present writ petition, insofar as it directs winding up of the cooperative society within four weeks from today, along with a certified copy of this order.
The Tribunal under the Act, 1965 may consider and decide the appeal filed by the petitioner within eight weeks from the date the appeal is so filed after affording opportunity of hearing to the parties concerned. Fate of the order of cancellation of the registration of petitioner's society shall be dependent upon the orders to be passed on the appeal. If the appeal is allowed, the order of the cancellation of registration of the society shall fall automatically. It is ordered accordingly.
With the aforesaid directions/observations, the present writ petition is disposed of.