Civil Writ Petition No. 2760 of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 2760 of 1991 Date of decision:- 26.04.2011 Bawa Singh and others ....Petitioners Vs. The State of Punjab and others. ....Respondents CORAM: HON'BLE MR. JUSTICE A.N. JINDAL Present:- Mr. M.L. Dhawan, Advocate, for Mr. Gopi Chand, Advocate, for the petitioner. Mr. Navdeep Sukhna, Assistant A.G., Punjab. Mr. M.L. Saini, Advocate, for respondent Nos. 4 & 5. ***** A.N. JINDAL, J (ORAL) The petitioners have invoked the provisions of Article 226/227 of the Constitution of India for quashing the order dated 06.12.1990 (Annexure P-5) passed by the Commissioner (Appeals), Jalandhar Division, accepting the appeal filed by respondent No.5 against the order of the Appellate Authority dated 08.01.1990. The factual background of the case is that Nikka Singh, father of the petitioners, was a member of the Barnala Scheduled Caste Land Development Society, Barnala (hereinafter referred to as 'the society') and he was allotted some land by the society. However, at the time of allotment, Nikka Singh appointed Civil Writ Petition No. 2760 of 1991 2 his sons Harnam Singh and Chanan Singh (respondent Nos. 4 and 5 respectively) as his nominees. Later, Nikka Singh died and after his death, a dispute arose between his legal heirs, as to who should be substituted as a member of the society in place of Nikka Singh. The matter was referred to the Arbitrator, who vide order dated 27.10.1989, observed that all the natural heirs of Nikka Singh are entitled to the share of Nikka Singh and an award in that respect was passed. This award was challenged in appeal before the Assistant Registrar, Cooperative Societies, Barnala, who dismissed the appeal of respondent Nos. 4 and 5 on 08.01.1990 and observed as under:- “....I have come to the conclusion that as per provisions of Co-operative Societies Act, 1961, unless a member changes his heir, his name cannot be changed.” Consequently, the decision of the Arbitrator was upheld. Aggrieved against the order passed by the Assistant Registrar, Co-opertive Societies, respondent No.5-Chanan Singh filed a revision petition before the Commissioner (Appeals), Jalandhar Division, who vide his judgment dated 06.12.1990 accepted the revision petition and set aside both the orders dated 27.10.1989 and 08.1.1990, while holding that this type of dispute does not touch the business of the constitution of the society, as required under Section 55 of the Act. Therefore, the dispute should not have been referred to the Arbitrator. As such, it set aside the award dated 27.10.1989 as well as the appellate order dated 08.01.1990. This order of the Commissioner (Appeals) is under challenge in the present writ petition. I have heard the rival contentions. Civil Writ Petition No. 2760 of 1991 3 Be that it may, the respondent Nos. 4 and 5 were appointed as nominees by Nikka Singh, but the mere appointment of nomination does not deprive all other legal heirs to have a share in the property of the deceased. By such nomination, respondent Nos. 4 and 5 alone do not become entitled to the said property or the membership of the society. As such, the view taken by the Arbitrator as well as the first Appellate Court is correct. Since the question of jurisdiction was never raised before the Arbitrator as well as the first appellate Court to decide reference made by the society to the Arbitrator, therefore, this plea could not be raised before the Commissioner (Appeals) for the first time. In any case, Nikka Singh being member of the society had obtained a share in the land of the society, therefore, any dispute qua such share/membership of the society certainly touches the business of the society. Resultantly, this petition is accepted and the order dated 06.12.1990 (Annexure P-5) passed by the Commissioner (Appeals) is set aside. (A.N.JINDAL) 26th of April, 2011 JUDGE ajp