CHINTAPALLI AGENCY v. SECRETARY (FOOD AND AGRICULTUP.E) GOVT. OF ANDHRA PRADESH, ETC

We may first examine the scheme of the present Act with which TI1e appointment of the Registrar and "other we are concerned. 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 suprintendence of the Registrar". It is, therefore, clear that the Deputy Registrar belongs to the cate gory of "other persons" appointed under sub-section (1) of section 3. When, therefore, powers of the Registrar are conferred upon him he has to act "under the general superintendence of the Registrar" as specificnlly mentioned in sub-section (2) of section 3. Again, we may refer to section 76 of the Act which provides for appeak 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 7612) (ii)l. The Explanation in sub-section (2) of section 76 pro vides that the Registrar includes the Additional Registrar, the Joint Registrar. the District Collector and the Special Cadre Deputy Regis trar working as Plcrsonal Assistant to the Collector, but not the Deputy Registrar of Co-operative Societies incharge of the Divisions. Thus under the scheme of the Act, "any other person" appointed under sec tion 3(1) on whom Government confers powers under section 3(2) the Deputy is not equated with the Registrar. 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). It is manifest that v H Section 77 provides for the power of revision and only the Regis trar and the Government have this concurrent r:ower. This power can be exercised either on an application by a party or suo moto. the Deputy Registrar is not conferred on Power under section 77 (!) [1963] Suppl. (I) SCR 530. _, ) • CHINTAPALLI CO-OP. SOCIETY v. SECRETARY (Goswami, J.) 569 whereas power under section 16 along with some other powers is con- A ferred oo the Deputy Registrar. Section 77 provides that the Regis- trar may of his own motion or on an appliCation made to him call for res- and examine the record of any officer subordinate to him pect of any proceeding, not being a proceeding wherefrom appeal lies to the Tribunal under section 76(1), to satisfy himself as to the regu larity o[ such proceeding, or the correctness, legality or propriety of any decision pass,~d or order made therein and pass any of the appro- priate orders specified in section 77 (1). This power of the Regis- trar is in accord with the preminent 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 cor- rect that the Registrar could not exercise power under section 77 in legality or propriety of the proceedings examining the correctness, initiated by the Deputy Registrar under section 16(5) of the Act. C B 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 tbe Act to such officers. When, therefore, an officer acts as a delegate of the D State Government he exercises statutory power of appeal of Government under section 21( 4) of the Act. .. ~n t at case : This Court observed Ii' " .... 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 inde pendent power in the officer. When the delegate exercise the power, he does so for the Governm,nt". Jn the present case it is true the power under section 16 is of the Registrar but the Deputy Registrar exercises that power as empowered by the Government but always "under the general superin tendence of the Registrar". Again, under section 76(2) any order passed in pursuance of the power so exercised under section 16 appeafable to the Registrar as an order passed by "any other officer" appointed under section 3 (I). 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. E F G ,, As mentioned earlier in the judgment the Government did not give any notice communicating to the appellant about entertainment of the Even thongh application in revision preferred by the respondents. the appe!)ant had filed some representations in respect of the matter, it would not absolve the Government !tom giving notice to the appel- H lant to make the representation against the claim of the respondents. The mjnimal requirement under section 77 (2) is a notice informing: the opponent about the application and affording him an opportunity 570 SUPREME COURT REPORTS [1978] l s.c.R. to make his representation against whatever has been alleged in his It is true that a personal hearing is not obligatory but the petition. minimal requirement of the principles of natural justice which 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 pro- ceedings from the authority disclosing grounds of complaint er other objection preferably by furnishing a copy of the petition on which action is contemplated in order that a proper and effective representa- tion may be made. This minimal requirement can no on account be dispensed with by relying upon the principle of absence of pre judice or imput'ation of certain knowledge to the party against whom action is sought for. It is admitted that no notice whatever had been given by 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 delving into correspondence between tho appellant and the Govern Such non-compliance with a mandatory provision gives rise ment. to unnecessary litigation which must be avoided at all costs. The impugned order of the Government is invalid being in 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 Govern ment in exercising revision power under section 77 of the Act was competent to issue directions to the Excise. Department in the matter It was submitted, however, that there of settlement of arrack shops. 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 to a subordinate authority is tantamount to a positive cfirection or order and it will be difficult for the subordinate authority to disregard the same. the Government Normally we would have remanded the revision petition to be disposed of by the Government in accordance with law and in 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. are allowed, but there will be no order as to costs. Both the appeals A B C D E F G H S. R. Appeal a[/owed. I- .. • "