Prabir Kumar Samania, J. - (1.) This writ petition is directed against an Award dated 16th January, 1998 passed in dispute Case No. 35/1993-94. The facts give rise to the present writ petition may be summarised as follows:- The writ petitioner took a loan amounting to Rs. 2 lakhs 19 thousand from the respondent/Co-operative Bank for purchasing a new bus during the period from 2.1.86 to 13.6.87. in default, In making repayment of the said loan, the bus which was purchased by the writ petitioner and remained hypothecated to the respondent/ Co-operative Bank was sold in auction on 23rd May, 1992 at a bid price of Rs. 2 lakhs 28 thousand. Rupees 1 lakh 15 thousand was adjusted against the principal amount and the balance was adjusted against interest. The writ petitioner thereafter having failed to pay the balance of the principal with accrued interest thereon the respondent/Co-operative Bank raised a dispute under Section 95 of the West Bengal Co-operative Societies Act, 1983 (hereinafter referred test the said Act). Evidently, the Registrar Co-operative Societies, Midnapur Division upon receipt of the said claim of the Co-operative Bank against the writ petitioner referred the same for adjudication by an Arbitrator and, in fact, by an order dated 14th October, 1993 one Shri A. K. Das, C. D. O., was appointed as an Arbitrator decide the said dispute. That on 20th June, 1994, the said Arbitrator returned back the case records without disposing of the proceeding and/or deciding the dispute. On the self-same date one Sri S. K. Maity, C.D.O., (Retd.) was appointed as the Arbitrator in place of Sri Das. Said Sri Maity though entered into the dispute by issuing summons to the writ petitioner and the other defendants but the case was not heard at all and lastly after expiry of about three years from the date of receipt of bis appointment, by an intimation dated 15th July, 1997 Informed his inability to dispose of the case and consequently returned the esse records to the Assistant Registrar, Co-operative Societies, Midnapur-III, Cental who appointed him. On 24th July, 1997 it was noted by the said Asstt. Registrar, in the order sheet of the dispute case, that the case records were received back by him from said Sri Maity. Since the period to make an award as per Section 96(5) of the said Act stood expired so one Sri M. Panda, A.R.C.S. (Retd.) was appointed as an Arbitrator. The said Arbitrator received the case records on 30th July, 1997 and the Award was ultimately made on 16th January, 1998 i.e., within the prescribed period of six months from the date of receipt of she case records by him.
(2.) In this background, Mr. Bhattacherjee, learned Senior Advocate appearing on behalf of the writ petitioner raised three points in support of this writ petition, firstly, in view of Section 95 of the said Act, which provides for a reference of a dispute between the parties who are among the persons described in Clauses (a) to (d) to sub-section (1) of Section 95 the reference is not maintainable as because the petitioner is not a member of the respondent/bank. Secondly, the Arbitrator, who was appointed on 20th June, 1994, entered into the reference by issuing summons to the parties but intimated bis inability to decide the case on 15th July, 1997 long after expiry of three years, while he become/functus officio. Therefore, the Registrar ought not to have acted on his Intimation by appointing another Arbitrator and be having had exhausted his power to appoint in Arbitrator was not entitled to make a further appointment of an Arbitrator for resolving the dispute further. Mr. Bhattacherjee, In elaborating bis arguments further contended that the Registrar did not, therefore, act independently in appointing Mr. Panda as the Arbitrator, but on the advice of an Arbitrator who became functus officio and whose intimation was not an intimation in law of his inability to decide the case. In continuation of his aforesaid contention Mr. Bhattacherjee, further contended that appointment of Mr. Panda even if regarded as a fresh appointment by the Registrar, then again the entire proceeding is vitiated in law as the said Arbitrator did not proceed in the matter de novo but proceeded from the stage where it was left by his predecessor. Lastly, Mr. Bbattacherjee, sought to challenge the award on merits eves though the same was appealable, on the ground that the Appellate Tribunal is not functioning in the State and, therefore, the petitioner has no other alternative remedy then to seek his redress in this jurisdiction.
(3.) Now coming to the first point, as above raised by Mr. Bhattacherjee, that the petitioner not being a member of the respondent/bank the dispute could not have been referred under Section 95 of the said Act for adjudication, it may be stated at the outset that from the records of the proceeding before the Arbitrator, it does not appear that the writ petitioner ever raised such a question either in her written statement or at any point of time is the proceeding before the Arbitrator. More so, there is so averment in this writ petition that the petitioner is not a member of the respondent/Co-operative Back. This factual aspect of the dispute as to whether the petitioner is a member of the respondent/Co-operative Bank or not, was therefore, not an issue at any stage of the proceeding before the Arbitrator and is sought to be raised for the first time in course of hearing of this writ petition without taking say specific plea thereto in the writ petition itself. A question, of law ever arising out of certain facts which re quire proof cannot be allowed to be raised for the first time in a writ proceeding without soy pleading thereto. More particularly when such an opportunity was available to the party concerned in the proceeding before the Arbitrator. No doubt the question as posed by Mr. Bhattacherjee strikes at the root of the reference by the Registrar of the dispute for adjudication which it otherwise a question as to the jurisdiction of the Registrar for reference of a dispute upon consideration of the fact as to whether the writ petitioner is a member or not of the respondent/Co-operative Bask. But such question should have been raised by the petitioner at the earliest possible opportunity before the Arbitrator. The decision reported in 62 CWN 426 cited by Mr. Bhuniya, learned Senior Advocate, on behalf of the respondent/Co-operative Busk laying down the firm and established principle that points of jurisdiction must have to be taken in the Tribunal below and at the earliest possible opportunity applies in full force in the facts and circumstances of this case. Therefore, the petitioner is not entitled to raise such a plea in this writ proceeding more particularly when she had participated in the Arbitrator proceeding for all these years without raising such pica at any stage of the said proceeding.;