# Shiv Kumar Mishra v. State of U.P.& Ors

- **Citation:** (2021) 9 ILRA 856
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-14
- **Case number:** Misc. Bench No. 36348 of 2019
- **Bench:** Rajan Roy, Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-kumar-mishra-v-state-of-u-p-ors-47407
- **Pages:** 8

## Headnote

Societies Act, 1965 - Sections 128, 98 &
99 - U.P. Cooperative Societies Rule, 1968
- Rule 269 - The Court held that there is no
power of review in the Registrar against its
order passed under Section 128 of the Cooperative Societies Act, 1965, but if the order
has
been
passed
under
an
erroneous
assumption of its own power going to the root
of the matter, or, if, inter alia, it is found that
there was willful suppression of material fact or
fraud was practiced the Registrar will have the
power to review its earlier order.

The scope of Rule 269 of the Rules, 1968 is only
for correction of clerical or arithmetical mistakes
in judgments or orders or errors arising therein
from any accidental slip or omission and any
error or omission which goes to the merits of
the case is beyond the scope of rule 269 of the
Rules,

## Text

856 INDIAN LAW REPORTS ALLAHABAD SERIES
earlier Acts, the conferment of power is
saved under Section 230 of the Code.

11. The Notification dated 29.12.2020
issued by the State Government, at best, is
only clarificatory and reconfirms the
position which always existed under law.
Therefore, there is no force in the ground
raised by learned counsel for the petitioner.

12. In view of aforesaid, present writ
petition is dismissed.

13. However, respondent no.2Tehsildar, Gauriganj, District Amethi, is
directed to decide the proceedings as
directed by the Collector, District Amethi,
by
his
order
dated
14.10.2020,
as
expeditiously as possible.

14. It is made clear that the Tehsildar,
Gauriganj, District Amethi, shall not grant
any unnecessary adjournments including on
the ground of strike of lawyers.

15. The other connected matters i.e.
Writ Petition Nos.25301 (MS) of 2020 and
894 (MS) of 2021 are delinked from this
writ petition.
----------
(2021)09ILR A856
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.09.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
HE HON'BLE RAVI NATH TILHARI, J.

Misc. Bench No. 36348 of 2019

Shiv Kumar Mishra ...Petitioner
Versus
State of U.P.& Ors. ...Respondents

Counsel for the Petitioner:
Brijesh Kumar Singh, Sanjay Kumar Pandey

Counsel for the Respondents:
C.S.C., Neeraj Chaurasiya , S.G. Singh

A. Cooperative Societies - U.P. Cooperative
Societies Act, 1965 - Sections 128, 98 &
99 - U.P. Cooperative Societies Rule, 1968
- Rule 269 - The Court held that there is no
power of review in the Registrar against its
order passed under Section 128 of the Cooperative Societies Act, 1965, but if the order
has
been
passed
under
an
erroneous
assumption of its own power going to the root
of the matter, or, if, inter alia, it is found that
there was willful suppression of material fact or
fraud was practiced the Registrar will have the
power to review its earlier order.

The scope of Rule 269 of the Rules, 1968 is only
for correction of clerical or arithmetical mistakes
in judgments or orders or errors arising therein
from any accidental slip or omission and any
error or omission which goes to the merits of
the case is beyond the scope of rule 269 of the
Rules,
1968.
Therefore
the
order
dated
11.11.2019
is
illegal
and
without
jurisdiction.(Para 26)

Writ Petition Allowed. (E-10)

List of Cases cited:

1. Patel Narshi Thakershi & ors. Vs Shri
Pradyumansinghji AIR 1970 SC 1273

2. Lily Thomas, Etc. Vs U.O.I. & ors. (2006) SCC
224

3. Dwaraka Das Vs St. of M.P. & ors. (1999) 3
SCC 500 (followed)

4. St.of Pun. Vs Darshan Singh (2004) 1 SCC
328

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. Heard Sri Brijesh Kumar Singh,
learned counsel for the petitioner, learned
standing counsel for opposite party Nos. 1
and 2 and Sri S.G.Singh, learned counsel
9 All Shiv Kumar Mishra Vs. State of U.P. & Ors.
857
for opposite party No.3 and perused the
material on record.

2. This petition has been filed for the
following main reliefs:

(i) issue a writ, order or direction
in the nature of certiorari, to quash the ex
parte order dated 11.11.2019 passed by
opposite party No.2 as contained in
Annexure No.1 to this writ petition.

(ii) issue a writ, order or direction
in
the
nature
of
mandamus,
thereby
commanding and directing the opposite
parties to allow the petitioner on the post of
deligate, as he was working earlier.

3. No counter affidavit has been filed,
filing of which is also dispensed with as
only legal question is involved and the
parties counsels are ad idem that there is no
factual dispute.

4. Learned counsel for the petitioner
submits
that
the
petitioner
made
a
complaint to the Joint Commissioner and
Joint
Registrar,
Cooperative
Society,
Ayodhya Mandal, Ayodhya-opposite party
No.2 regarding corruption/misuse of public
money in the contruction of cooperative
bank building. The matter was investigated
in which finally the opposite party No.2
vide order dated 26.02.2019 directed that at
the time of payment for construction work,
an amount of Rs. 3.19 lakhs shall be
deducted and if payment had already been
made the same amount shall be recovered.
The petitioner started receiving threats
from the Contractor and the Chairman of
the co-operative society due to which the
petitioner submitted an application for
withdrawal from the membership on the
post of delegate on 18.04.2019, upon which
the Committee of Management of the
District
Cooperative
Bank
Limited,
Faizabad-opposite
party
No.3
vide
resolution
No.
23
dated
31.07.2019
accepted the petitioner's application, but
without following the due procedure. The
Vice Chairman of the society and seven
other delegates filed application dated
01.08.2019 before the Joint Commissioner
and Joint Registrar of the co-operative
society to annul the resolution dated
31.07.2019 upon which finally the Joint
Commissioner and Joint Registrar passed
order dated 01.11.2019 (Annexure 8) under
Section 128 of the U.P. Co-operative
Societies Act, 1965, and annuled the
resolution No. 23, providing that the said
resolution shall be void and inoperative and
be deleted from the records of the cooperative society. Liberty was, however,
granted to the Committee of Management
to take fresh decision as per the majority.
Later on, the opposite party No.3 filed an
application dated 05.11.2019, upon which
an ex parte order dated 11.11.2019 without
any opportunity of hearing to the petitioner
was passed and thereby the earlier order
dated 01.11.2019 has been stayed. The writ
petition has been filed challenging the
order dated 11.11.2019.

5. Learned counsel for the petitioner
has submitted that the Joint Commissioner
and Joint Registrar has passed the order
dated 11.11.2019 reviewing the order dated
01.11.2019 and in exercise of power under
Rule 269 of the U.P. Cooperative Societies
Rules, 1968, which is mentioned in the
order itself. His submission is that there is
no power of review with the Commissioner
and Joint Registrar, Cooperative Societies
and further as any clerical or arithmetical
error or accidental slip or omission in the
order dated 1.11.2019 has not been pointed
out, Rule 269 of the Rules, 1968 is not
attracted.
858 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Learned counsel for opposite party
No.3 has supported the order dated
11.11.2019
on
the
ground
that
the
Committee
of
Management
vide
application dated 05.11.2019 assured the
opposite party No.2 that the meeting of the
Committee
of
Management
shall
be
convened at the earliest pursuant to the
earlier letter of the opposite party No.2
dated 02.08.2019, by which the Committee
of Management/ Chief Executive Officer
was directed to reconsider the resolution
dated 31.07.2019.

7. We have heard the submissions
advanced by the learned counsels for the
parties and perused the material on record.

8. A perusal of the order dated
11.11.2019 shows that it has been passed
specifically mentioning to be under Rule
269 of the Rules, 1968. It has also been
recorded in the order that the application
dated 05.11.2019 of the opposite party No.3
deserved review.

9. The points which arise for our
consideration are:

1) Whether the Registrar, Cooperative Societies has the power of review
under the U.P. Cooperative Societies Act,
1965 to review an order passed by him
under Section 128 of the Act, 1965 ?

2) What is the scope of Rule 269
of the Rule 1968 ? and

3) Whether the impugned order
dated 11.11.2019 is without jurisdiction and
deserves to be quashed ?

10. To consider the above aspects it
would be appropriate to refer to the
provisions of Sections 128, 98 and 99 of
the Act, 1965 and Rule 269 of the
Rules,1968.

11. Section 128 of the U.P. Cooperative Societies Act, 1965 reads as
under:-

"128. Registrar's power to annul
resolution of a co-operative society or
cancel order passed by an officer of a cooperative society in certain cases.-

The Registrar may-

(i) annul any resolution passed by
the Committee of Management, or the
general body of any co-operative society;
or -

(ii) cancel any order passed by an
officer of a co-operative society

if he is of the opinion that the
resolution or the order, as the case may be,
is not covered by the objects of the society
or is in contravention of the provisions of
this Act, the rules or the bye-laws of the
society, whereupon every such resolution or
order shall become void and inoperative
and be deleted from the records of the
society :

'[Provided that, the Registrar
shall, before making any order, require the
Committee of Management, general body
or officer of the co-operative society to
reconsider the resolution, or as the case
may be, the order, within such period as he
may fix but which shall not be less than
fifteen days, and if he deems fit may stay
the operation of that resolution or the order
during such period.]

12. Section 98 of the U.P. Cooperative
Societies Act, 1965 reads as under:-
9 All Shiv Kumar Mishra Vs. State of U.P. & Ors.
859

"98. Appeal against the award,
orders and decisions.- (1) An appeal
against-

"( a ) an order of the Registrar
made under sub-section ( 2 ) of Section 7
refusing to register a co-operative society ;

[ ( b ) an order of the Registrar
under sub- section ( 3 ) of Section 12
refusing to register, or under sub - section
( 2 ) of Section 14 registering an
amendment in the bye - laws of a co-
operative society :

( c ) a decision of co- operative
society refusing to admit any person as a
member of the society under sub- section ( 2
) of Section 26 or expelling any member of
the society under sub-section (1) of Section
27 [or an order passed under sub- section (
1 ) of Section 38 for removal of an officer
from the office held by him or to disqualify
him from holding any office] ;

( d ) an order of the Registrar
under sub- section ( 2 ) of Section 27
expelling or removing a member or under
sub- section ( 2 ) of Section 38 removing or
disqualifying any officer of a co- operative
society;

( e ) an order of the Registrar
superseding the Committee of Management
of a co- operative society under Section 35;

(f)
an order
made by
the
Registrar, under Section 67 apportioning
the cost of an enquiry held under Section
65 or an inspection made under Section 66
;

( g ) an order of surcharge made
by the Registrar under Section 68 ;

( h ) an award made by an
arbitrator or Board of Arbitrators under
sub - section ( 1 ) or sub - section ( 2 ) of
Section 71;

( i) an order made by the
Registrar under Section 72 directing the
winding up of a co- operative society;

(j) any order made by the
liquidator of a co-operative society in
exercise of the powers conferred on him by
clauses ( b ) and ( g ) of Section 74 ;

(k) any order made by the
Registrar on a question arising between the
parties or proceedings under clause ( b ) of
Section 92 and of the nature referred to in
Section 47 of the Code of Civil Procedure,
1908 ( Act V of 1908 );

( 1 ) an order for attachment of
any property made by the Registrar under
Section 94 ;

(m) an order of the Registrar
under Section 125 directing amalgamation
or merger, or under Section 126 directing
division;

(n) an order passed by the
Registrar under Section 128 annulling
any resolution or cancelling any order,
may,
within
thirty
days
of
the
communication of the order, decision or
award to be appealed against, be preferred
by the aggrieved party to the authorities
mentioned in sub-section (2) in the
manner prescribed.

(2) An appeal under [clauses (c),
(d), (e), (f), (g), (k) and (I) ] of sub-section
(1) shall be preferred to the Tribunal, and
an appeal under [clauses (a), (b), (h),
860 INDIAN LAW REPORTS ALLAHABAD SERIES
(i),(j), (m) and (n) of the said sub-section
shall be preferred-

(a) if the decision or the order
was made by the Registrar, to the State
Government, or

( b ) if the decision or order or
award was made by any other person or
authority, to the Registrar;

(c) if the order or award was
made on a dispute relating to an election ,
to the Tribunal .

( 3 ) Notwithstanding anything
contained in clause ( b ) of sub- section

 (2) the State Government may by
notification in the Gazette, direct that
appeals against awards mentioned in
clause ( h ) of sub - section ( 1 ) shall , in
respect of such cases or class of cases, as
may be specified in the said notification lie
to the Tribunal, and thereupon any person
aggrieved by such award, may appeal to
the Tribunal.

(4) The appellate authority after
hearing an appeal under this section may
pass such orders as it may deem fit .

13. Section 99 of the U.P. Cooperative
Societies Act, 1965 reads as under:-

"99. Review of order of appellate
authority- (1) The appellate authority
under Section 97 or Section 98, as the case
may be, may on the application of any
party, review its order in any case and pass
in reference thereto such order as it thinks
fit :

Provided that no such application
shall be entertained unless the appellate
authority is satisfied that there has been a
discovery of new and important matter of
evidence which, after exercise of due
diligence, was not within the knowledge of
the applicant or could not be produced by
him at the time when the order was made
or that there has been some mistake or
error apparent on the face of the record or
for any other sufficient reason :

Provided further that no such
order shall be made under this sub- section
unless notice has been given to all
interested parties and they have been
afforded a reasonable opportunity of being
heard.

(2) An application for review
under sub-section (1) by any party shall be
made within thirty days from the date of
communication of the order of the appellate
authority sought to be reviewed.

14. Rule 269 of the U.P. Cooperative
Societies Rules, 1968 reads as under:-

"269. Clerical or arithmetical
mistake in orders, decisions, or awards
made by the Registrar, Arbitrator or the
Board of Arbitrators or in the orders made
by the appellate authority or errors arising
in such orders (including the orders of
appellate authority), decisions or awards
from any accidental slip or omission may at
any time be corrected by the authority
concerned, either of its own motion or the
application moved by any of the parties to
the dispute."

15. The aforesaid provisions make it
clear, from a bare reading thereof, that
under Section 128 of the U.P. Co-operative
Societies Act, 1965, the Registrar has the
power to annual any resolution passed by
the Committee of Management, or the
9 All Shiv Kumar Mishra Vs. State of U.P. & Ors.
861
general body of any co-operative society, or
to cancel any order passed by an officer of
a co-operative society, if he is of the
opinion that the resolution or the order, as
the case may be, is not covered by the
objects of the society or is in contravention
of the provisions of the Act, 1965, the rules,
1968 or the bye-laws of the society. An
order passed under Section 128 by the
Registrar is appealable under Section 98(1)
(n) of the Act, 1965, before the State
Government under Section 98(2) (a).
Section 99 of the Act, 1965, provides for
review which is against the order passed by
the appellate authority under Section 97 or
Section 98, by the appellate authority of its
orders.

16. Section 99 of the Act, 1965 does
not, therefore, provide for review against the
order passed by the Registrar under Section
128. Any provision conferring the power of
review on the Registrar against the order
passed by him under Section 128 of the Act
could not be brought to our notice by the
learned counsels appearing in the case.

17. The power of review is not an
inherent power. In Patel Narshi Thakershi
And Ors. vs Shri Pradyumansinghji, AIR
1970 SC 1273, the Hon'ble Supreme Court
held that "It is well settled that the power to
review is not an inherent power. It must be
conferred by law either specifically or by
necessary implication." In Lily Thomas, Etc.
vs Union Of India & Ors (2006) SCC 224
also it has been held that "the dictionary
meaning of the word "review" is "the act of
looking; offer something again with a view to
correction or improvement. It cannot be
denied that the review is the creation of a
statute. Therefore, the power of review unless
conferred by the statue cannot be exercised
by a Court, Tribunal or authority".

18. We have considered above, that
the Co-operative Societies Act, 1965 does
not confer any power of review on the
Registrar with respect to the order passed
under Section 128 of the Act, 1965.
However, in cases where the appeal lies to
the Registrar under Section 98 (2) (b) of the
Act, the Registrar as appellate authority
may review its order passed in exercise of
appellate jurisdiction under Section 99 of
the Act.

19. We are not oblivious of the
concept of procedural review, which
inheres in every judicial, quasi judicial or
even an administrative authority, if the
order is passed under an erroneous
assumption of one's own power going to
the root of the matter or if it is found that a
fraud has been practiced or there was
willful suppression, which is not the case
here, as, the order dated 11.11.2019 does
not contain any such ground for reviewing
the order dated 01.11.2019.

20. A bare reading of Rule 269 of the
Rules, 1969 shows that it gives power for
correction of clerical or
arithmetical
mistakes in the orders, decisions, or award
made by the Registrar, Arbitrator or the
Board of Arbitrators or in the orders made
by the appellate authority or error arising in
such orders, decisions or awards from any
accidental slip or omission which can be
corrected by the authority concerned at any
time either of its own motion or on the
application of any of the parties to the
dispute. The condition precedent for
exercise of power under Rule 269 of the
Rules, 1968 is that there must be a clerical
or arithmetical mistake in the order or an
error from any accidental slip or omission.
If no such error exists the power under
Rule 269 would not be available at all.
862 INDIAN LAW REPORTS ALLAHABAD SERIES
21. Rule 269 of the Rules, 1968 is
analogous to Section 152 of the Code of
Civil Procedure, 1976 (C.P.C.). Section 152
C.P.C. is being reproduced as under:

"152. Amendment of judgments,
decrees or orders- Clerical or arithmetical
mistakes in judgments, decree or orders or
errors arising therein from any accidental
slip or omission may at any time be
corrected by the Court either of its own
motion or on the application of any of the
parties."

22. While considering the scope of
Section 152 C.P.C., the Hon'ble Supreme
Court in the case of Dwaraka Das Vs.
State of M.P. and others (1999) 3 SCC
500 has held that the exercise of this power
contemplates the correction of mistakes by
the Court of its ministerial actions and does
not contemplate of passing effective
judicial orders after the judgment, decree or
order. The settled position of law is that
after the passing of the judgment, decree or
order, court or the tribunal becomes functus
officio and thus being not entitled to vary
the terms of the judgments, decrees and
orders earlier passed. The correction
contemplated
are
of
correcting
only
accidental omission or mistakes and not all
omissions and mistakes which might have
been committed by the Court while passing
the judgment, decree or order. The
omission sought to be corrected which goes
to the merits of the case is beyond the
scope of Section 152 for which the proper
remedy for the aggrieved party is to file
appeal or review application. It implies that
the Section cannot be pressed into service
to correct an omission which is intentional,
how erroneous that may be. No Court can
under the cover of the sections 151 and 152
C.P.C. modify, alter or add to the terms of
its original judgment, decree or order. It is
appropriate to quote paragraph 6 of the
Dwaraka Das (supra) as under:

"Section 152 CPC provides for
correction of clerical or arithmetical
mistakes in judgments, decrees or orders of
errors arising therein from any accidental
slip or omission. The exercise of this power
contemplates the correction of mistakes by
the court of its ministerial actions and does
not
contemplate
of
passing
effective
judicial orders after the judgment, decree
or order. The settled position of law is that
after the passing of the judgment, decree or
order, the court or the tribunal becomes
functus officio and thus being not entitled
to vary the terms of the judgments, decrees
and orders earlier passed. The corrections
contemplated
are
of
correcting
only
accidental omissions or mistakes and not
all omissions and mistakes which might
have been committed by the court while
passing the judgment, decree or order. The
omission sought to be corrected which goes
to the merits of the case is beyond the scope
of Section 152 for which the proper remedy
for the aggrieved party is to file appeal or
review application. It implies that the
section cannot be pressed into service to
correct an omission which is intentional,
however erroneous that may be. It has been
noticed that the courts below have been
liberally construing and applying the
provisions of Sections 151 and 152 of the
CPC even after passing of effective orders
in the lis pending before them. No court
can, under the cover of the aforesaid
sections, modify, alter or add to the terms
of its original judgment, decree or order. In
the instant case, the trial court had
specifically held the respondent- State
liable to pay future interest only despite the
prayer of the appellant for grant of interest
with effect from the date of alleged breach
which impliedly meant that the Court had
9 All Prem Das Vs. State of U.P. & Ors.
863
rejected the claim of the appellant insofar
as pendente lite interest was concerned.
The omission in not granting the pendente
lite interest could not be held to be
accidental omission or mistake as was
wrongly done by the trial court vide order
dated 30-11-1973. The High Court was,
therefore, justified in setting aside the
aforesaid order by accepting the revision
petition filed by the State."

23. The law as laid down in Dwaraka
Das (supra) would apply with equal force to an
order passed under Rule 269 of the Rules, 1968
which is in pari materia with Section 152 C.P.C.
but with the difference that the omission etc.
contemplated in rule 269 and sought to be
corrected occurring in an order passed under
Section 128 of the Act, which goes to the merits
of the case the proper remedy would be to file
an appeal under Section 97 or 98 of the Act,
1965, as the case may be, and not the remedy of
review. In Dwaraka Das (supra) the remedy of
appeal or review was held to be proper remedy
as C.P.C. confers the power of review on the
courts, which power of review is not with the
Registrar to review an order passed under
Section 128 of the Act.

24. In State of Punjab Vs. Darshan
Singh (2004) 1 SCC 328 also the Hon'ble
Supreme Court has held that "the power under
Section 152 of the Code are neither to be
equated with the power of review nor can be
said to be akin to review or even said to clothe
the court concerned under the guise of invoking
after the result of the judgment earlier rendered,
in its entirety or any portion or part of it."

25. The order dated 11.11.2019, as is
evident has not been passed on any such ground
of clerical or arithmetical mistake or errors from
accidental slip or omission in the order dated
01.11.2019.

26. We therefore hold, on points 1 to 3 as
framed in paragraph 9 above, as under:

1) There is no power of review in the
Registrar against its order passed under Section
128 of the Co-operative Societies Act, 1965, but
if the order has been passed under an erroneous
assumption of its own power going to the root
of the matter, or, if, inter alia, it is found that
there was willful suppression of material fact or
fraud was practised the Registrar will have the
power to review its earlier order.

2) The scope of rule 269 of the
Rules, 1968 is only for correction of clerical or
arithmetical mistakes in judgments or order or
errors arising therein from any accidental slip or
omission and any error or omission which goes
to the merits of the case is beyond the scope of
rule 269 of the Rules, 1968.

3) The order dated 11.11.2019 is
illegal and without jurisdiction.

27. In view of the aforesaid, the order
dated 11.11.2019 cannot be sustained and is
hereby quashed. The order dated 01.11.2019
stands revived in terms thereof.

28. The writ petition is allowed.
----------
(2021)09ILR A863
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Matters Under Article 227 No. 1328 of 2021

Prem Das ...Petitioner
Versus
State of U.P. & Ors. ...Respondents