Decided on November 27,1979



N. H. BHATT - (1.) From paragraph 8 quoted by me above from the judgment in Appeal No. 355/68 it appears clear that rightly or wrongly the Co-ope- rative Tribunal on the earlier occasion had refused to entertain the claim of this petitioner Society. The Tribunal held that the Society was in know of such proceedings. Apart from that when the Registrar initiates procee- dings under sec. 93 of the Gujarat Co-operative Societies Act in respect of the affairs of the Society and the said investigation is gone through it is inevitable to hold that the Society must be in know of those proceed- ings under sec. 93. But for the record of the Society and Co-operation of its such an investigation could not be conducted. As a matter of fact the Registrar acting as the Custodian of the interest of all the Co-ope- rative Societies in his District initiates the investigation which is a judicial investigation for all purposes. I say that it is a judicial investigation because the order passed by the Investigating Officer shall if not carried out - be deemed to be a decree of a Civil Court as defined in clause (2) of sec. 2 of the Code of Civil Procedure 1908 and shall be executed in the same manner as a decree of such Court or be executed according to the provisions of the Land Revenue Code and the rules thereunder for the time being in force for the recovery of arrears of land revenue..
(2.) It is therefore evident that the proceedings under sec. 93 are judicial proceedings. Once the proceedings under sec. 93 of the Act are initiated and concluded the parallel proceedings under sec. 96 of the Gujarat Co-operative Societies Act cannot be initiated and proceeded with. Though the Proceedings under Sec. 93 of the Act are initiated by the Registrar and the proceedings under sec. 96 can be initiated by the Co- operative Society itself they are for all practical purposes parallel proceed- ings and the judgment given earlier in one proceedings would bar the second proceedings. The Legislature that had enacted sec. 93 and sec. 96 of the Act cannot be credited with a view that it permitted two parallel procee- dings even by risking the two conflicting judgments. It is therefore ine- vitable to hold that the proceedings under sec. 93 and those under sec. 96 are mutually exclusive in the sense that even in the judicial proceed- ings earlier the said finding would operate as a res judicata in respect of the very subject matter. In both these proceedings the concerned Co- operative Society by necessity is presumed to be a party because the proceedings under sec. 93 of the Act cannot be conceivably conducted without the Society being there in full co-operation of the Investigating Officer appointed under sec. 93 of the Act.
(3.) In the view that I have taken I am analogically supported by the judgment of the Madras High Court in the case of V. Sundaram Iyer v. Deputy Registrar of Co-operative Societies reported in AIR 1957 Madras page 634. Sec. 49 and 51 of the Madras Co-operative Societies Act were under Scrutiny. The Madras High Court in that Connection has observed as follows: " In a case where the provisions of sec. 49 are inapplicable it is clear that reco- urse could be had to sec. 51 and the procedure there contained would alone be applicable. But in cases falling within secs. 49 where (1) sec. 51 has no applicable and (2) cases where a matter falls both within sec. 49 and 51 the normal rule of construction would be that the two provisions are not intended to operate on parallel lines leaving open to the Registrar or the departmental authorities to choose to act under either provisions in his or their unfettered discretion. But that sec. 51 which exclude the jurisdiction of the Civil Court will be strictly construed and that in cases where sec. 49 is applicable sec. 51 would for that reason be excluded". ;

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