GRATIAEN J.—Jayasundera v. Katuliyadde Co-operative Society Ltd.
4954Present: Gratiaen J. and Gunasekara J.
MRS. W. JAYASUNDERA, Appellant, and KATULIYADDECO-OPERATIVE SOCIETY LTD., Respondent
S.C. 88—D. C. Kandy, X 1,456
Do-operative Societies Ordinance (Cap. 107), as amended by Ordinance No. 21 of 1949,S'. 2, 45—Dispute between co-operative society and ex-officer’s heirs—AssistantRegistrar’s unauthorised reference to arbitration—Validity of award.
Where an Assistant Registrar of Co-operative Societies acted in excess ofhis powers by referring to arbitration a dispute between a co-operativesociety and the heirs of an ex-officer of the society—
Held, that the award of the arbitrator was a nullity.
.sAlPPEAL from a judgment of the District Court, Kandy.
. . *
H. W. Jayewardene, with D. It. P. Goonetilleke, for the 6th defendant•appellant.
H. V. Perera, Q.G., with S. W. Jayasuriya, for the plaintiff respondent.
Cur. adv. vuU.
March 25, 1954. Gbatxaen J.—
A person named J. M. Jayasundera was, until he died intestate on13th February, 1949, the Treasurer of the Katuliyadde Co-operative So-ciety Ltd. (the respondent to this appeal). His heirs are the appellant(his widow), three minor children, and three children by a former marriage.
After the death of Jayasundera, the respondent Society claimed from-the appellant and the other heirs a sum of Rs. 1,571-49 alleged to re-present a debt to the Society incurred by Jayasundera as its Treasurer.This claim was not admitted, and a “ dispute ” accordingly arosebetween the Society and the heirs of an ex-officer of the Society withinthe meaning of section 45 of the Co-operative Societies Ordinance(Cap. 107) as amended by the Co-operative Societies (Amendment) Act,Ko. 21 of 1949. *-
An assistant Registrar of Co-operative Societies purported to referthis dispute on 8th August 1949 to the decision of an arbitrator in terms•of section 45 (2) of the Ordinance ; the arbitrator purported to make an.award in favour of the Society on 10th September 1949 ; and the Registrar,
GRATIAEN J.—Jay asunder a v. KatvMyadde Co-operative Society Ltd.
on appeal, purported to affirm the award on 23rd January 1950. I mayadd in passing that throughout these extra-judicial proceedings the minor-children against whom an adverse decision was successfully obtainedwere unrepresented.
On 22nd April 1950 the Society made an ex parte application in the-District Court of Kandy to have the purported award enforced as if itwere a decree of Court. In due course the appellant and the other heirstook steps to have the ex parte order against them vacated, but the learnedDistrict Judge held that their objections to the validity of the award weredevoid of merit. The present appeal is from his order dated 2nd ■ August1951 in favour of the Society.
The arbitrator’s purported award has been challenged on various-grounds, but it is sufficient for the purposes of this appeal to refer to onefundamental reason for deciding that the award was a nullity from itsinception.
In my opinion the Assistant Registrar of Co-operative Societies-(Mr. T. D. L. Peiris) had no power to refer the dispute to arbitration undersection 45 (2) of the Ordinance on 8th August 1949. The only person whowas vested with this statutory power at that date w^s thg Registrarhimself.
Section 2 of the Ordinance authorised the (then) Governor of Ceylon toissue a general or special Gazette notification conferring on any AssistantRegistrar “ all or any of the (statutory) powers of a Registrar ”, On19th July 1946 Mr. Peiris was specifically given power under section 45 to“ refer any dispute for disposal to an arbitrator or arbitrators ”—videGazette notification No. 9,581 dated 19th July 1946. This is the powerwhich Mr. Peiris purported to exercise on 8th August 1949.
It is important to note .that the Gazette notification empoweredMr. Peiris only to make a reference to arbitration in respect of disputes ofthe kind particularised in section 45 in its unamended form ; a dispute be-tween a Society and the heirs of an ex-officer did not fall within any ofthese categories, and did not become subject to the special machinery ofthe Ordinance until the amending Act No. 21 of 1949 passed into law on24th May 1949. In fact, Mr. Peiris did not receive authority from the-Govemor-General to exercise the powers of a Registrar in respect ofdisputes of the latter kind until 30th June 1950—vide Gazette notifica-tion No. 10,115 dated 30th June 1950. It follows that Mr. Peiris hadacted in excess of his powers when he referred this dispute to arbitration.The purported award was therefore a nullity, and could not lawfully berecognised or enforced by a Court of law. I would allow the appeal andorder the respondent Society to pay the appellant’s costs in both Courts.
Swan J.—I agree.