Sharma, J. - (1.) The question arising in this case is whether a matter, if it comes within the scope of S. 40 of the Bihar and Orissa Co-operative Societies Act, 1935 (hereinafter referred to as the Act) has to be excluded from the purview of S. 48 of the Act.
(2.) Special leave is granted.
(3.) The facts relevant for the decision of this appeal are in a short compass. The respondent No.1 was Depot Manager under the appellant Marketing Union Limited and during his tenure as such, a shortage of coal was detected. A claim was accordingly made for the said loss by the appellant and a reference was made to the Assistant Registrar, Co-operative Societies, respondent No. 3, under S. 48 of the Act. The Assistant Registrar absolved the respondent No. I from the alleged liability and an appeal was filed by the appellant under S. 48(6) of the Act before the Joint Registrar , Co-operative Societies, respondent No. 2, who accepted the appellant's case (supra), rejected the defence and made an award accordingly. This was challenged before the Patna High Court by a writ application under Art. 226 of the Constitution of India. The High Court held that since the matter was covered by the provisions of S. 40, S. 48 could not apply. Consequently the award was held to be illegal. So far S. 40 was concerned, it was pointed out that the claim had to be rejected on the ground of limitation. Thus without considering the other questions raised by the parties, the High Court allowed the writ petition by the impugned judgment which is under challenge in the present appeal.;