Bapna Ag. , C. J. - (1.) THIS is a petition by Narainlal arising out of certain arbitration proceedings under the Rajasthan Co-operative Societies Act, 1953 (Act No. IV of 1953 ).
(2.) THE case as set up by the petitioner is that there was a Cooperative Society at Danta Ramgarh, known as the Danta Ramgarh Sahkari Bhandar Ltd. THE petitioner was the secretary of the society for some time, and thereafter replaced by other persons. Satya Narayan, Secretary of the Sahkari Bhandar moved the Registrar on 24th August, 1953, that on examination of the accounts a sum of Rs. 8484/9/6 was due against the former Secretary, Narainlal, and he refused to pay the same inspite of notice, and even denied the liability. He, therefore, prayed for an arbitration by the Registrar under sec. 61 of the Rajasthan Cooperaitve Societies Act. It was alleged that the arbitrators made an award on the 10th August, 1956, declaring that no sum was due to the Sahkari Bhandar from the petitioner Narainlal, and also recorded that the petitioner had certain claims against the Bhandar for his salary for the period he served as its manager. It was then alleged that the Registrar, Co-operative Societies, by order of 20th October, 1956, set aside the award, and appointed another nominee of his to make a fresh award within two month of his order. THE nominee of the Registrar was the Assistant Registrar, Cooperative Societies, Jaipur, and the latter issued a notice on 15th November, 1956, to the petitioner and certain other persons to attend his office on the 23rd of November for the hearing of the case. THE present petition was filed on the 4th of December, 1956, challenging the validity of the order of the Registrar dated 20th October, 1956, and praying that the Register and his Assistant be directed to refrain from taking any proceeding in the matter of arbitration. It was submitted that the award of 10th August, 1956, should be taken to have disposed of the dispute between the parties. The Registrar, the Assistant Registrar and Satya Narayan, Secretary of the said Sahakari Bhandar were made respondents to the petition. The first two respondents by a joint reply said that the order of the Registrar was valid, and that the subsequent nominee of the Registrar had given his award on the 19th of December, 1956. A perusal of the record of the Assistant Registrar shows that the application under sec. 61 was given by. Satya Narayan on 24th August, 1953. The Registrar nominated Roop Chand Luhadiya as his nominee, and asked Narayanlal on the one hand and the Danta Ramgarh Sahkari Bhadar on the other to nominate their arbitrators, if they so desired. Narayanlal nominated Damodarlal as an arbitrator by letter of 10th September, 1953. The Sahkari Bhandar nominated Satya Narayan as its nominee by letter of 8th September, 1953. The Registrar changed his nominee more than once, and Shri Tara Chand Yadav, Inspector, was the nominee appointed by order of 31th March, 1956. The award was given by Shri Tara Chand Yadav on 10th August, 1956, holding that no amount was due against Narainlal Chaudhry. This award also bears the signatures of Satya Narayan and Narainlal. The signature of Narainlal was of course in token of the intimation of the award. It may be borne in mind that his arbitrator was Damodarlal. and his signatures are not on the award. Satya Narain was both the plaintiff and the arbitrator, and it is not clear whether he signed as arbitrator or as a party in token of the intimation of the award. The language of the award is in first person, and seems to indicate that the award was by Shri Yadav. The Co-operative Societies Act permits an appeal against certain orders. It does not permit an appeal against an award, but powers are conferred on the Registrar to set aside the award under certain conditions referred to in sec. 62 of the Act. One Mali Ram, a member of the Sahkari Bhandar, filed a memorandum, which he described as an appeal praying that the award be set aside on the ground that neither Damodarlal nor Satya Narayan joined the third arbitrator Shri Tara Chand Yadav in giving the award. It was objected that Satya Narayan was examined as a witness although he was an arbitrator. Certain other objections were also taken. Satya Narayan himself filed an application for setting aside the award on the ground that the award was given by Shri Tara-chand alone, and that he compelled Satya Narayan to depose as a witness. After certain enquiry by the office of the Registrar, a note was put up before him that the case be referred back to arbitration, as the award was invalid, because it had been given by two of the three members of the Board and one of them was examined as a witness. A suggestion was made that new arbitrators be appointed under sec. 62 (2) of the Act. The office note was supported by the superior officer, and was put up before the Registrar, who on 19th September, 1956, passed the following order - "as proposed. Sampatmal Bhandari. " The case of the petitioner is that the power to be exercised by the Registrar in setting aside the award is a judicial power, and the tribunal authorised to exercise a judi-cial power should apply its own mind rather than act upon a certain office note. The contention is not without force. The power to be exercised under sec. 62 of the Cooperative Societies Act is a purely judicial power, and the Registrar, if he is to act has to act personally. He cannot work as if on the administrative side, agreeing to what somebody in the office would suggest. Sec. 62 authorised the Registrar under certain conditions to set aside the award for reasons to be recorded in writing. He cannot, therefore, dispose of an application under sec. 62 by writing only the words "as proposed. " A document giving formal expression to the office order has also been produced, which is in the following terms - "the award made by the Board of the arbitrators in the above noted case on 10. 8. 56 is set aside and in exercise of the powers conferred on the undersigned under sec. 62 (2) of the Rajasthan Cooperative Societies Act, 1953, I do hereby appoint the Assistant Registrar, Cooperative Societies, Jaipur as nominee of the undersigned Vice Shri T. C. Yadav to decide the dispute. The arbitrators shall make a fresh award within a period of 2 months of the issue of the order. " This order suffers from the same defect as the office order, because the reasons for setting aside the award had not been recorded. The second part of the formal order purports to appoint the Assistant Registrar, Cooperative Societies, as a nominee in place of T. C. Yadav. It does not speak about the other arbitrators, who apparently are required to continue. The order of the Assistant Registrar dated 7th December, 1956, directing Narainlal to attend with his nominee and the subsequent proceedings show the participation of Satya Narayan as an arbitrator. It is a matter of surprise, that it has not struck the officer of the Cooperative Department as to the suitability of Satya Narayan as an arbitrator. He was the person who was acting on behalf of the claimant, Danta Ramgarh Sahkari Bhandar, and his nomination as arbitrator was accepted. The result is that a person acting for the plaintiff is also made a judge in a cause. In our opinion, the entire proceedings taken by the Registrar were misconceived from the date of the acceptance of the appointment of Satya Narain as an arbitrator. As stated above, the award by Tarachand was by himself, which was again not a valid award. The final award stated to have been given by the Assistant Registrar and Satya Narayan on 19th Dec, equally suffers from various defects. The first is, as stated above, that Satya Narayan was a judge in his own cause. The Chairman did not intimate Damodarlal, the nominee of Narainlal, of the proceedings, and left it to Narainlal to inform him. When a case is referred to arbitration, whether under agreement of the parties or under any provision of law, the reference is to the arbitrators as a whole. All arbitrators are expected to join in the deliberations and pronounce the award whether unanimously or by majority, but proceedings by only some of the arbitrators is not contemplated. It may be that under certain circumstances, where one of the arbitrators may refuse to act, the others may go on with the proceedings, but that is not the state of circumstances in the present case. As a result, the petition is allowed, the entire proceedings after the application of Satya Narayan dated 24th August, 1953, are quashed, and directions are issued to the Registrar to act according to the provisions of law. The petitioner will get his costs from respondent No. 3. . ;