NAG AT /IN GAM J.—Piyadaaa v. Bogallegama
1948Present: Nagalingam J.
PIY AT) AS A, Petitioner, and BOGALLEGAMA et al.,Respondents.
S. C. 184—Application for a writ of certiorari on C. R. Bogallegamaand Penitvduwa Co-operative Society, Ltd.
Co-operative Societies Ordinance—Dispute—Society and past office bearer—Reference to arbitration—Jurisdiction of Registrar—Chapter 107,.Section 45 (1) (c).
The term “ officer ” in section 45 (1) (c) of the Co-operative SocietiesOrdinance does not include a past office hearer, and a dispute between,the Society and a past office bearer cannot be referred to arbitration,under the section.
lUagahoon v. Bogallegama (1948) 49 N. L. R. 403 followed.
Application for a writ of certiorari.
B. Wihramanayake, K.C., with H. Wanigatunga, for the petitioner _II. W. Jayewardene, for 2nd respondent.
V. Tennekoon, Crown Counsel, for 3rd respondent.
Cur. adv. vuU.
November 19, 1948. Nagalingam J.—
This is an application by the petitioner for a writ of Certiorari on the-respondents for the purpose of quashing certain arbitration proceeding®1 31st Edition at p. 377.1 Evidence, 8th Edition pp. 253-231-
NAG-ALINGAM J.—Piyada-aa v. Bogallegama
had before the 1st respondent in his capacity as arbitrator appointedby the 3rd respondent, the Registrar of Co-operative Societies, inregard to a dispute alleged to have arisen between the petitioner and thesecond respondent, the Co-operative Society.
The petitioner was the President of the Co-operative Society priorto August 13, 1946, on which date new office-bearers were elected dis-placing the previous office-bearers and committee members; the out-going office-bearers handed over all books, documents and papers, relatingto the society to the new office-bearers barring the minute book andcash book which were at the date of handing over of the other booksand papers in the custody of the petitioner. Normally the petitioneras President would not be the proper person to have had the custodyof either the minute book or the cash book. But, it appears that thepetitioner advanced to the society by way of loan a sum of Rs. 350 andns entries in regard to this transaction had been made both in the minutebook and cash book, he declined to part with them excepting in thepresence of an inspector or on repayment of the loan. From the evidenceplaced before the arbitrator, it would seem that when the inspectormade a request to the petitioner for the return of the books, the latterdenied that he had possession of them. Thereafter the Co-operativeSociety applied to the Assistant Registrar to make an award in its favouragainst all the members of the previous committee, for a sum of Rs. 5,000“ for failure to deliver the books of this society although request was madeon several occasions as damages ”, and the Assistant Registrar purport-ing to act under section 45 of the Co-operative Societies Ordinanpe,Chapter 107, referred the dispute to the first respondent nominatinghim as arbitrator in that behalf.
It is unnecessary to consider all the points urged on behalf of thepetitioner as in my opinion the case can be disposed of on one of themand I shall therefore only deal with it. The point has been taken onbehalf of the petitioner that the dispute in question is not one whichproperly could have formed the subject of reference under Section 145of the Ordinance. It is urged in the first place that the dispute is notone touching the business of the society and in the second place thatassuming that it does, the dispute is not one that arises among the personsor class of persons enumerated in that section, in regard to whom aloneproceedings under that section would be available.
It is conceded that neither sub-clauses (a) nor (6) of Section 45 (1)can apply as the dispute has not arisen between the Society and thepetitioner in his capacity as member : Mohideen v. Lanka Matha Co-operative Stores Society Limited x. It was however suggested on behalf-of the respondents that the dispute between the petitioner and theSociety falls under sub-clause (c) which refers to a – dispute between thesociety or its committee and any officer of the society. Assuming for themoment that the books were withheld by the petitioner in his capacityas President of the society the further question does arise whether theterm “ any officer of the society ” in this sub-clause includes a past orex-officer of the society. When one contrasts the provisions of sub-clauses (a) and (6) with those of (c) one cannot fail to be struck by
1 (1947) 48 N. L. B. 177.
N AGAX.TN GAM J.—Piyadasa v. Bog ail eg a m a
the reference expressly ■ made to past members in contradistinctionto present members, of the society, while there is a total absence of anyreference whatsoever to past officers as distinct from present officers.It is not possible to take the view that the omission was other thandeliberate. If deliberate as it must necessarily be so deemed, it iaobvious that the legislature did not empower the Registrar to decide adispute between a past office-bearer and the society. My brotherGratiaen J. came to a similar conclusion in regard to this question, inthe case of Illangakoon v. Bogallagama1. The purported referenceof the dispute by the society to the Assistant Registrar was thereforewithout legal sanction and when the Assistant Registrar entertained,the dispute he did so without jurisdiction and the reference by him ofthe dispute to an arbitrator was a nullity. This conclusion effectuallydisposes of the application before me. It is needless therefore toconsider the question whether the dispute is one touching the businessof the society or whether assuming that the dispute was one which wasproperly referable by the society to the Assistant Registrar, the lattercould in any event have referred the dispute to an arbitrator in viewof the limitation on his powers in this respect contained in rule 29framed under Section 37 of the Ordinance (Volume 1, SubsidiaryLegislation 561).
I would therefore hold that the Assistant Registrar was in error inassuming jurisdiction to act under Section 45 of the Ordinance in regardto the dispute reported to him by the 2nd respondent and thatthe 1st respondent also acted without jurisdiction in holding theinquiry and making the award. I therefore quash all the proceedingsincluding the award made by the 1st respondent.
In regard to the execution proceedings commenced by the societyagainst the petitioner to enforce the award in its favour, I do not thinkit possible to make any specific order in regard to it as those proeeedingsare not before me. But, I think, it will be sufficient if I indicate whatmust now be obvious to the parties that the foundation upon which theapplication for execution was made having crumbled, those proceedingsare void and of no legal validity and must in the fitness of things bewithdrawn.
There remains for consideration the question of costs. That thepetitioner must be awarded his costs no one gainsays. I am also quiteclear in my mind that the 1st respondent, the arbitrator, should not beand cannot be condemned in costs. Counsel for the society and theRegistrar were greatly concerned as to which of them should properly bemade liable to pay the costs of these proceedings. Having regard tothe consideration that the co-opeative society is managed by lay peoplewho are advised by officers of the Registrar and that it was the actionof .the Assistant Registrar which started in its trail the proceedings-complained of, I think the proper order to make is that the Registrarshould pay the costs of the petitioner. The other respondents will beartheir own costs.
1 (1948) 49 N. L. R. 403.
PIYADASA, Petitioner, and BOGALLEGAMA et al., Respondents