IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 WP(C).No. 34226 of 2009(W) ------------------------------------------ PETITIONER(S): ------------------------ THE HOSDURG PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.NO. C-390, KANHANGAD, KASARAGOD DISTRICT-671 315, REPRESENTED BY ITS SECRETARY. BY ADVS. MR.V.G.ARUN, MR.T.R.HARIKUMAR. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KASARAGOD DISTRICT. R1 & R2 BY SR. GOVERNMENT PLEADER MR. K.C. SANTHOSH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.R. P.N.RAVINDRAN, J. ---------------------------------- W.P.(C) No.34226 of 2009-W ---------------------------------- Dated 18th January, 2010. JUDGMENT The petitioner is a co-operative society registered under the Kerala Co-operative Societies Act, 1969, hereinafter referred to as 'the Act' for short. The managing committee of the petitioner society that met on 16.4.2008 decided to amend the feeder category sub rules and to move the Joint Registrar of Co-operative Societies (General), Kasaragod seeking approval of the said amendment. Pursuant to the said decision, the petitioner society moved the Joint Registrar of Co-operative Societies (General), Kasaragod seeking approval of the proposed amendment to the feeder category sub rules. The said request was rejected by the Joint Registrar of Co-operative Societies who communicated his decision to the petitioner society by Ext.P1 letter dated 5.9.2008. By the said letter, the Joint Registrar of Co-operative Societies also directed the petitioner society to delete the post of Part-time Sweeper from the feeder category sub rules and to submit a fresh proposal seeking approval. 2. Aggrieved by Ext.P1, the petitioner society filed Ext.P2 appeal dated 3.12.2008 before the Government under section 83 (1) (j) of the Act. In that appeal, it was specifically stated in paragraph 12 of the statement of facts that the impugned order was received by the petitioner society on W.P(C)No.34226 of 2009 2 6.10.2008. By Ext.P3 letter dated 21.4.2009, the Government informed the petitioner society that as per section 83 (2) of the Act, the appeal ought to have been filed within 60 days from the date of the order appealed against, that the Government have no power to condone the delay in submitting the appeal and therefore the appeal is rejected. The petitioner society thereupon sent Ext.P4 letter dated 19.5.2009 to the Government wherein it was inter alia stated that as the order impugned in the appeal was communicated only on 6.10.2008, the appeal filed on 3.12.2008 is well within time. In Ext.P4 letter, the petitioner society requested the Government to restore the appeal to file and to hear and dispose it of on the merits with notice to the petitioner. By Ext.P5 letter dated 17.7.2009 the Government informed the petitioner that an appeal under sub-section (1) of section 83 of the Act has to be filed within 60 days of the date of the decision, that the period of limitation starts from the date of the order or decision appealed against and not from the date it is received and that as the order impugned in the appeal is dated 5.9.2008, the appeal ought to have been filed on or before 5.11.2008. The Government informed the petitioner that as the appeal was not filed within the stipulated time and the Government do not have the power to condone the delay in filing the appeal, the appeal cannot be reconsidered. Exts.P3 and P5 are under challenge in this writ petition, wherein the petitioner seeks a direction to the W.P(C)No.34226 of 2009 3 Government to consider Ext.P2 appeal and to pass orders thereon on the merits. 3. The petitioner contends that the original of Ext.P1 was received by ordinary post only on 6.10.2008 and that well within the period of 60 days therefrom, Ext.P2 appeal was presented before the Government. It is contended that as the appeal was filed within 60 days from the date of receipt of the order appealed against, the appeal cannot be rejected as time-barred. It is further contended that as the order impugned in the appeal was not passed in the presence of the petitioner and a copy thereof was communicated only on 6.10.2008, the period of limitation for filing the appeal starts from 6.10.2008 and not from 5.9.2008 as claimed by the Government. It is further stated that if the period of limitation prescribed for filing an appeal under section 83 (2) of the Act is computed with reference to the date of receipt of the order appealed against, the appeal filed on 3.12.2008 is well within time and therefore the Government erred in rejecting the appeal as time-barred. 4. I heard Sri.T.R.Harikumar, the learned counsel appearing for the petitioner and Sri.K.C.Santhoshkumar, the learned Senior Government Pleader appearing for the respondents. The learned counsel appearing for the petitioner contended that as section 83 (1) (j) of the Act confers on the petitioner the right to file an appeal and the order impugned in the appeal W.P(C)No.34226 of 2009 4 was not passed in the presence of the petitioner and the contents thereof were made known to the petitioner only when a copy thereof was communicated, the expression 'date of the order' occurring in section 83 (2) of the Act has to be interpreted to mean the date of communication of the order appealed against and not the date on which the order was passed. The learned counsel appearing for the petitioner submitted that if in a given case the lower authority passes an order and keeps it back and communicates it to the party against whom the order has been passed only after the period of limitation prescribed for filing the appeal has expired, the aggrieved party will be left without any remedy. The learned counsel for the petitioner also placed reliance on the decisions of this Court in Joseph v. Deputy Collector (1982 KLT 904) and Varghese v. RTA, Malappuram (1984 KLT 991) in support of his contentions. 5. Per contra, Sri.K.C.Santhoshkumar, the learned Senior Government Pleader appearing for the respondents contended relying on the decision of this Court in Calicut City Service Co-operative Bank and another v. State of Kerala and others (2008 (3) KHC 917) that under section 83 of the Act the Government have no power to condone the delay in filing the appeal. The learned Senior Government Pleader also placed reliance on the decision of a Division Bench of this Court in W.A.Nos.1886 and 1965 of 2006, Krishnan v. State of Kerala (2007 (1) KLT Short Notes W.P(C)No.34226 of 2009 5 page 45, Case No.62) to contend that in the absence of any provision expressly conferring power on the appellate authority to entertain an appeal filed after the prescribed period of limitation, the appellate authority is not competent to entertain the appeal. The learned Senior Government Pleader also contended that under section 83 (2) of the Act the period of limitation has to be computed with reference to the date of the order and not the date on which it is communicated to the petitioner. 6. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is not in dispute that under section 83 (1) (j) of the Act, an appeal lies from Ext.P1 to the Government. The period of limitation prescribed in Section 83(2) of the Act for filing an appeal is 60 days from the date of the order or decision appealed against. The petitioner has in Ext.P2 appeal and Ext.P4 letter stated that Ext.P1 order passed by the Joint Registrar of Co-operative Societies on 5.9.2008 was communicated to the petitioner only on 6.10.2008. When this writ petition came up for hearing on 30.11.2009, the learned Government Pleader was directed to get instructions as to the date on which the order appealed against was served on the petitioner and the date on which Ext.P2 appeal was filed by the petitioner. When the writ petition was heard today, the learned counsel appearing for the petitioner made available to me the original of the Inward Register maintained by the W.P(C)No.34226 of 2009 6 petitioner society and submitted that the entries therein would establish the petitioner's case that the original of Ext.P1 was received by post only on 6.10.2008. On going through the Inward Register, I find that Ext.P1 order was received in the office of the petitioner society only on 6.10.2008. The relevant page of the Inward Register does not contain any over-writings or corrections. The Inward Register is also seen to be one regularly kept in the course of the petitioner's business. In the light of the entries in the Inward Register and in the absence of any other cogent material from the side of the respondents to show that Ext.P1 order was passed in the presence of the petitioner and communicated to the petitioner before 6.10.2008, I am constrained to hold that the petitioner has established that the original of Ext.P1 was received by them only on 6.10.2008. 7. The respondents have no case that Ext.P1 order was passed in the presence of the petitioner. Section 83 (2) of the Act states that an appeal under sub-section (1) shall be made within 60 days from the date of the order or decision appealed against. Rule 124(3) of the Kerala Co- operative Societies Rules, 1969 stipulates that every appeal or application for revision shall be accompanied by the original or a certified copy of the order appealed against or sought to be revised and such number of copies as there are respondents. It is evident from rule 124(3) of the Kerala Co- operative Societies Rules that an appeal from Ext.P1 will have to be W.P(C)No.34226 of 2009 7 accompanied by the original of Ext.P1 or a certified copy thereof. As noticed earlier, Ext.P1 order was admittedly not passed in the presence of the petitioner. The original of Ext.P1 was admittedly not communicated to the petitioner on 5.9.2008. It was sent by post and as held by me earlier it was received by the petitioner only on 6.10.2008. Therefore, it has to be held that till 6.10.2008 the petitioner society was not aware of the rejection of their request for approval of the amended feeder category rules or the reasons for such rejection. In the light of rule 124(3) of the Kerala Co- operative Societies Rules, the petitioner could not have filed an appeal challenging Ext.P1 order earlier than 6.10.2008. Then, the only question that arises for consideration is whether the appeal filed by the petitioner on 3.12.2008 challenging Ext.P1 order is one filed within time and whether the rejection of the said appeal as one filed beyond time is legal. 8. In Joseph v. Deputy Collector (1982 KLT 904), M.P.Menon (J) while considering the question whether an appeal filed under the Kerala Agricultural Workers Act, 1974 from an order passed by the Conciliation Officer appointed under that Act to the Agricultural Tribunal should be filed within a period of 30 days from the date of the order appealed against as stipulated in section 23 thereof. After an elaborate analysis of the case law on the point including the decisions of the Apex Court in Raja Harish Chandra Raj Singh v. Deputy Land Acquisiton Officer and another W.P(C)No.34226 of 2009 8 (AIR 1961 SC 1500), Boota Mal v. Union of India (AIR 1962 SC 1716) and in Asst. Transport Commissioner, Lucknow and others v. Nand Singh (AIR 1980 SC 15), the learned Judge held as follows: “8. The case law thus shows that three or four theories were competing for supremacy, in the interpretation of provisions relating to limitation. One approach was to go by the literal or grammatical construction, ignoring considerations of equity and hardship. Another was to emphasise the purpose of the remedy, where a person's rights were affected and to hold that knowledge, constructive or actual, was necessary. The third was to fix up the point of time when it could be held that the order was effectively made, as distinct from the date of its mere making. And the fourth was to postulate that an order was no order at all for the purposes of limitation, unless the party against whom it was passed had some means of knowing about it. The question here is which of the above approaches should prevail in the interpretation of S.23 of our Act. 9. When the legislature provided for an appeal under Section 23, against the decision of the Conciliation Officer, it is reasonable to think that it was aware that the Conciliation Officer was likely to commit mistake and that it wanted to provide a machinery for correction by way of appeal. Viewed from this angle, what S.23 really provides for is a remedy; the provision is not merely a part of a statute of limitation. In General Accident Fire and Life Insurance Corporation Ltd. v. Abdul Rahim (AIR 1941 PC 6), the Privy Council had no doubt observed that: “A Limitation Act ought to receive such a construction as the language of its plain meaning imports.........Great hardship may occasionally be caused by statutes of limitation in cases of poverty, distress and ignorance of rights, yet the statutory rules must be enforced according to their ordinary meaning in these and other like cases.” But the observations related to statutes of limitation as such, and prescription of time thereunder, and not to composite provisions of other kinds of statutes providing for remedies and incidentally prescribing the time within which such remedy was to be resorted to. In my opinion, a distinction can be drawn between statutory provisions merely dealing with limitation, and provisions designed to confer a right of appeal or of revision, with an added prescription of time. The W.P(C)No.34226 of 2009 9 approach in the latter types of cases is to find out and give effect to the true legislative intent. When S.23 of the Agricultural Workers Act provides for an appeal to be filed within 30 days, the intention is basically to provide for a remedy, and not to provide for a remedy by the left hand and make it illusory by the right, which will be the result of holding that the appeal should be filed within 30 days from the date of the order, even if the aggrieved party were to remain ignorant about the passing of the order during the whole of the period. Rules of interpretation should not strive to frustrate the legislative intent; they should be geared to the fulfillment of the legislative aim. If the purpose of S.23 is to provide the aggrieved party with a right of appeal, and if it is held that the mere making and signing of the order and keeping it in the files will be sufficient for time to start running, the very purpose of the provision will be defeated. Alternatively, it can be held that the very concept of an appeal involves a right to complain about some mistake committed by the original authority, and that the party concerned cannot be expected to make such a complaint till he comes to know about the commission of the mistake. With respect, that appears to have been the reason why their Lordships of the Supreme Court thought of making some additional observations in Nand Singh's Case (AIR 1980 SC.15), over an above those made in Harish Chandra (AIR 1961 SC 1500). 10. Rule 11 of the Kerala Agricultural Workers' Rules, 1975 provides that appeals filed under S.23 of the Act have to be accompanied by “copies of the order appealed against”; and this, in my opinion, is another indication that the appeals are to be fled only after the appellants come to know of the order and are in a position to secure their copies. A rule made under a statute may not be a safe guide for construing the provisions of the statute, but it is possible to think that the rule-making authority, as a delegate of the legislature, was also of the view that the remedy provided under S.23 should be proper and effective. S.47(3) of the Act provides for the laying of the Rules before the Legislative Assembly and their modification by the assembly; and in so far as Rule 11 has not been so modified, it is legitimate to assume that the legislature itself was of the view that a party could wait till getting a copy of the order, before filing an appeal against it.” It was held that the time for filing an appeal under section 23 of the Kerala Agricultural Workers Act, 1974 cannot start to run till the party concerned has constructive or actual knowledge of the passing of the order. W.P(C)No.34226 of 2009 10 9. In Varghese v. RTA, Malappuram (1984 KLT 991), U.L.Bhat, J. (as His Lordship then was) considered the question whether the period of limitation for filing a revision petition under sectin 64A of the Motor Vehicles Act, 1939 starts from the date of the order or from the date on which the revision petitioner had actual or constructive knowledge of the impugned order. The learned Judge held after a detailed analysis of the case law on the point including the decision of M.P.Menon,J. in Joseph v. Deputy Collector (supra) as follows: “9. Facts of the decisions referred to above except those in Joseph's case and Danna Singh's case are easily distinguishable. Nevertheless, observations of the Supreme Court in the decisions mentioned above lay down the approach to interpretation of provisions prescribing time for availing statutory remedy. As pointed out by M.P.Menon J. in Joseph's case, there are different approaches. Ordinarily, what is required is to avoid equitable considerations and depend on plain and grammatical meaning of words. But then such an approach at times would go against the scheme of the statutory provisions which provide a statutory remedy. In those cases, there may not be justification to depend on plain and grammatical meaning of the words used. The Court has to look at the statutory provisions, the statutory remedy prescribed and the procedure for exercisinig the statutory remedy provided and adopt that construction which would subserve the statutory purpose. Actually, that was what was done in the three decisions of the Supreme Court referred to above and in the other decisions also except that of the Mysore High Court in G.R.Nanjundaswami's case. With great respect, it is difficult to agree that the decision in G.R.Nanjundaswami's case is correct. In that decision, the principles laid down in Pushkar Municipal Board case were correctly applied. 10. S.64 A of the Act which provides a revisional remedy stipulates that the application must be made within 30 days of the order. Rule 172 of the Rules reiterates this provision. Of course, there are certain other rules such as rules 170 and 225 where the W.P(C)No.34226 of 2009 11 limit prescribed is 30 days of the receipt of the order appealed against. In those cases, certainly, there would be no difficulty in interpreting the provisions of the Rules. They are clear and unambiguous and subserve the statutory purpose. But, it appears to me that the provision of limitation in S.64A of the Act and rule 172 of the Rules must be read along with latter portion of rule 172 which states that the application shall be accompanied by the original or a certified copy of the order or proceedings against which the application is preferred. The person aggrieved by the impugned order whether or not he was present at the time of the passing of the order, whether or not copy of the order was served on him, is required to produce either the original or a certified copy of the order along with the application. In these circumstances, to hold that the time stipulated for filing the application would start to run from the date on which the order was made or signed or the decision was arrived at, would amount to stultifying the statutory remedy. He cannot produce the original unless it is served on him. He cannot produce a certified copy unless it is supplied to him. Where it is not supplied to him by the authority, he must be in a position to apply for and obtain a certified copy. This would postulate the presence of actual or constructive knowledge of the order in him. That is the basis of the provision. The expression “30 days from the date of the order” must be understood in this way. Time will begin to run only from the date on which he had actual or constructive knowledge of the order as the case may be, of the impugned order. 10. In D.Saibaba v. Bar Council of India and another ((2003) 6 SCC 186), the Apex Court considered the question whether the period of limitation prescribed for filing a review petition before the Bar Council of India under section 48AA of the Advocates Act, 1961 commences from the date of the order or from the date of receipt of the order sought to be reviewed. In D.Saibaba's case (supra), the Apex Court held as follows: “9. So far as the commencement of the period of limitation for filing the review petition is concerned we are clearly of the opinion that the expression “the date of that order” as occurring in Section 48-AA has to be construed as meaning the date of W.P(C)No.34226 of 2009 12 communication or knowledge of the order to the review petitioner. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart. 10. An identical point came up for the consideration of this Court in Raja Harish Chandra Raj Singh v. Dy.Land Acquisition Officer (AIR 1961 SC 1500). Section 18 of the Land Acquisition Act, 1894 contemplates an application seeking reference to the court being filed within six months from the date of the Collector's award. It was held that “the date of the award” cannot be determined solely by reference to the time when the award is signed by the Collector or delivered by him in his office. It must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position, then placing a literal and mechanical construction on the words “the date of the award” occurring in the relevant section would not be appropriate. It is fair and just that a decision is communicated to the party whose rights will ultimately be affected or who will be affected by the decision. The knowledge, either actual or constructive, of the party affected by such a decision, is an essential element which must be satisfied before the decision can be brought into force. Thus construed, the making of the award cannot consist merely of the physical act of writing an award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. A literal or mechanical way of construing the words “from the date of the Collector's award” was held to be unreasonable. The Court assigned a practical meaning to the expression by holding it as meaning the date when the award is either communicated to the party or is known by him either actually or constructively. 11. The view taken in Raja Harish Chandra Raj Singh case by a two-Judge Bench of this Court was