Civil Appeal No 3047 of 1992
From the Judgement and Order dated 3071984 of the Patna High Court in Civil Writ Jurisdiction Case No 373 of 1977
ML Verma and SK Sinha for the Appellant
AK Srivastava for the Respondents
The Judgement of the Court was delivered by SHARMA J
The question arising in this case is whether a matter if it comes within the scope of section 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 Section 48 of the Act
Special leave is granted 3
The facts relevant for the decision of this appeal are in a short 894 compass
The respondent No1 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 No3 under Section 48 of the Act
The Assistant Registrar absolved the respondent No1 from the alleged liability and an appeal was filed by the appellant under Section 486 of the Act before the Joint Registrar Co operative Societies respondent No2 who are accepted the appellant s case rejected the defence and made an award accordingly
This was challenged before the Patna High Court by a writ application under Article 226 of the Constitution of India
The High Court held that since the matter was covered by the provisions of Section 40 Section 48 could not apply
Consequently the award was held to be illegal
So far section 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 judgement which is under challenge in the present appeal
It has been contended on behalf of the appellant that the provisions of Section 48 are wide enough to embrace the dispute which has been the subject matter of the present case and they cannot be given a narrow interpretation so as to exclude their application to cases which may also be covered by Section 40
In reply reliance has been placed on behalf of the respondent No1 on the decision in Purnea Ministerial Government Officer s Co operative Society Ltdv
Abdul Quddus 1969 BLJR Vol
11 969 which has found favour with the High Court
Section 40 pertaining to surcharge provides that if as a result of an audit or inquiry it appears to the Registrar that any person who has taken part in the organisation or management of the society or any past or present officer of the society has either made a payment contrary to law or has been guilty of misappropriation or of having committed similar acts detailed therein the Registrar may inquire into the matter and make an order requiring him to contribute an appropriate sum by way of compensation to the assets of the society
The second Proviso to sub section 1 of the said section says that no such order shall be passed in respect of any act or ommission which had occurred more than six years earlier
The provisions of sub section 1 of Section 48 omitting the explanations which are not relevant for the present issue dealing with Disputes are in the 895 following terms 1 If any dispute touching the business of a registered society other than a dispute regarding disciplinary action taken by the society or its managing committee against a paid servant of the society arises a amongst members past members persons claiming through members past members or deceased members and sureties of members past members or deceased members whether such sureties are members or non members or b between a member past member persons claiming through a member past member or deceased member or sureties of members past members or deceased members whether such sureties are members or non members and the society its managing committee or any officer agent or servant of the society or c between the society or its managing committee and any past or present officer agent or servant of the society or d between the society and any other registered society or e between a financing bank authorised under the provisions of sub section 1 of Sec 16 and a person who is not a member of a registered society such dispute shall be referred to the Registrar Provided that no claim against a past member or the estate of a deceased member shall be treated as a dispute if the liability of the past member or of the estate of the deceased member has been extinguished by virtue of Sec 32 or Sec 63
The claim of the appellant against the respondent No1 is clearly covered by clause c of sub section 1 above and therefore could have been validly referred to the Registrar under Section 48
The argument however is that since the matter is covered by Section 40 Section 48 should be held to be inapplicable
The High Court agreed and made the following observations 896 It is well known proposition of law that when a matter falls under any specific provision then if must be governed by that provision and not by general provisions Generalia specialibus non derogant
The High Court has in its judgement assumed that whenever a specific remedy is made available in law the other remedy more general in nature necessarily gets excluded
Validity of plural remedies if available under the law cannot be doubted
If any standard book on the subject is examined it will be found that the debate is directed to the application of the principle of election where two or more remedies are available to a person
Even if the two remedies happen to be inconsistentthey continue for the person concerned to choose from until he elects one of them commencing an action accordingly
In the present case there is no such problem as no steps under Section 40 were ever taken by the appellant
The provisions of Section 48 must therefore be held to be available to the appellant for recovery of the loss
7Our view that a matter which may attract Section 40 of the Act will continue to be governed by Section 48 also if the necessary conditions are fulfilled is consistent with the decision of this Court in Prem Jeet Kumar V Surender Gandotra and others 1991 Supp 2 SCC 215 arising under the Delhi Co operative Societies Act 1972
The two Acts are similar and Sections 40 and 48 of the Bihar Act and Sections 59 and 60 of the Delhi Act are in pari materia
The reported judgement followed an earlier decision of this Court in Pentakota Srirakulu vs Co operative Marketing Society Ltd  We accordingly hold that the High Court was in error in assuming that the application of provisions of Section 48 of the Bihar Act could not be applied to the present case for the reason that Section 40 was attracted
So far the question of limitation is concerned it is true that as in the Delhi Act a period of six years was fixed under the Bihar Act also by second Proviso under Section 40 1 which reads thus Provided further that no order shall be passed under this sub section in respect of any act or omission mentioned in clauses a b c or d except within six years of the date on which such act or omission 897 occurred
 It will be observed that the six years rule of limitation however is limited for the purpose of section 40 and cannot govern the reference under section 48
The relevant provision of section 48 is to be found in the Proviso to section 481 which has been quoted above
For determining its impact on the present case it is necessary to examine the Proviso closely
Firstly both the Proviso and section 63 of the Act are concerned only where the claim is against a member
Even if the Proviso be assumed to govern a dispute between the society and its past or present officer or servant it cannot come to the aid of the present respondent No1 because he was dismissed from service on 15101966 and he was directed to deposit the disputed amount within 30 days therefrom
The dispute was referred for adjudication under section 48 on 12121966 and the reference was registered as Award Case No 25 of 1968 on 03081968
Thus all these steps were taken within a period of two years
No reliance therefore can be placed on either section 32 or 63
The case of Putnea Ministerial government Officers  Co operative Society Ltd Supra is clearly distinguishable
The respondent there was a member of the Society in question and had taken a loan which was the subject matter of the dispute
As was pointed out by the High Court the claim had stood barred by limitation and therefore it was held that the reference was incompetent in view of the Proviso to section 481
The High Court in the present case was in the circumstances not entitled to rely on this decision and its conclusions must be set aside as being erroneous in law
However since in the judgement it is stated that several other questions were also raised on behalf of the respondent No1 who was the writ petitioner which remained undecided the case requires reconsideration by the High Court on the remaining points
Accordingly the impugned judgement is set aside and the writ petition is remitted to the High Court for fresh decision in accordance with the observations in the present judgement
The appeal is allowed but in the circumstances without costs
UR Appeal allowed


Summary:
A document purporting to be a receipt and bearing a four anna revenue stamp was executed by M in favour of the respondent and recited inter alia as follows  I have this day given 108 to you the land described below which is owned by me
Now you have become occupancy tenant of the same
You may enjoy the same in any way you like from generation to generation
My estate and heirs or myself shall have absolutely no right thereto
You shall become the owner of the said land from date 1 6 44
I will have absolutely no right thereto after the said date 
The estate has been given to you in lieu of your Rs 8700 due to you subject to the condition that in case your amount has not been paid to you on date 1 6 44 You may fully enjoy the estate in any way you like from generation to generation
 The respondent instituted a suit against M for the specific performance of a contract to lease alleging that under the document he had contracted to lease to her in perpetuity in occupancy right his lands in consideration of the debt of Rs 87oo and as the amount was not paid within the due date he was liable to perform and give effect to the said contract
M contended inter alia that the document was an agreement to lease under section 27 of the Indian  and that as it was not registered it was inadmissible in evidence
Held that an agreement to lease under section 27 of the Regis tration Act 1908 must be a document which effects an actual demise and operates as a lease
An agreement between two parties which entitles one of them merely to claim the execution of a lease from the other without creating a pre sent and immediate demise in his favour is not an agreement to lease within the meaning of section 27 of the Act
Held further that on a construction of the document in question it was not intended to and did not effect an actual or present demise in favour of the respondent and consequently it was not an agreement to leaseunders
27 Of the Act
Accordingly the document did not require registration and was admissible in evidence
Hemanta Kumari Devi vs Midnapuy Zamindari Co Ltd 1919 LR 46 IA 240 relied on
Panchanan Bose vs Chandya Charan Misra Cal 808 approved
Narayanan Chetty vs Muthia Servai Mad 63 Purmananddas jiwandas vs Dharsey Kirji Bom
101 Balram vs Mahadeo ILR and Poole vs Bently    distinguished