@JUDGMENTTAG-ORDER
1. Petitioner seeks issuance of writ of certiorari or any other writ or direction in the nature of writ, calling for the records of respondents resulting in the impugned order of the first respondent in CMA (CS) No. 184 of 1991, dated 7.10.1993 confirming the order of the second respondent in ARC.No. 77 of 91-92, dated 27.6.1991 and quash the same as illegal and without jurisdiction and pass such further or other orders as the Court deem fit and proper in the circumstances of case and thus render justice.
2. Petitioner joined third respondent Co-operative Society as Sales Assistant in the year 1975. Thereafter, he was appointed as Branch Manager in the year 1976, which post he still holds.
3. Petitioner was Branch Manager at Nagore II from 1.9.1988 to 31.5.1989. During this period certain allegations have been made against petitioner. The allegation was that he had sold 1237 bags of wheat in the open market without distributing same to Societies. An enquiry was conducted u/s 81 of Tamil Nadu Co-operative Societies Act and pursuant to the enquiry, it was found that petitioner had misused his position as Branch Manager and created false documents and sole 1237 bags of wheat in the open market. When report was filed, immediately petitioner paid entire price of wheat amounting to Rs.2,72,140 being the value of wheat which petitioner has alleged to have sold in the open market.
4. Thereafter, third respondent filed an arbitration claim against petitioner alleging that petitioner is liable to pay a sum of Rs.5,44,280 being double the price of 1237 bags and deducting Rs.2,72,140, petitioner was asked to pay the remaining half of Rs.2,72,140 and Rs.30 towards cost. The arbitration case was allowed and the matter was taken on appeal. The appeal was also dismissed. By virtue of these decisions, petitioner has now been directed to pay Rs.2,72,140 and Rs.30 towards cost.
5. In the various grounds taken in the writ petition it is said that the imposition of levy of penalty of double time price of wheat is bad in law and the same has no legal basis. Reliance based on G.O.Ms.No.431 dated 2,6.1989 does not empower levy of penalty. At any rate, said Government Order cannot be made applicable to the facts of this case. It is also said that even assuming that the said G.O. could be made applicable, the alleged occurrence took place long before the issuances of G.O.
6. When the matter came for argument, additional affidavit also has been filed by learned counsel for petitioner submitting that the Co-operative Sub-Registrar who decided the arbitration case has no jurisdiction to decide the matter since as per statute, he is entitled only to decide those cases where the monitory liability is Rs. 10,000 and below. Even though the same has been enhanced subsequently to Rs. 50,000, the enhanced jurisdiction also will not enable Co-operative Sub Registrar to take decision in this case.
7. Learned counsel for third respondent was also heard, learned Government Pleader also argued the matter on instructions.
8. The first point that is argued by learned counsel for petitioner is regarding jurisdiction of Co-operative Sub Registrar, who decided the arbitration case. When this argument was put forward, learned counsel for respondents submitted that this point was not agitated before the authorities below and for the first time, the same should not be allowed to be agitated in a proceedings under Article 226 of Constitution of India.
9. I do not think that the said submission of learned counsel for respondents could be accepted. If on admitted facts the question of jurisdiction could be decided and if on finding the same goes to the root of the matter the contention could be made first time under Article 226 of Constitution of India also.
10. As per G.O.Ms.No. 268, Co-operation Department, dated 8.6.1998, issued u/s 3 of Tamil Nadu Co-operative Societies Act, 1983, Governor of Tamil Nadu issued Government Orders conferring powers on the officers under Co-operative Societies Act. u/s 3 of the Co-operative Societies Act, Government may appoint any officer of the Government to be Registrar of Co-operative Societies for the State of Tamil Nadu or any portion of it or for any class or classes or category or categories of registered societies and may, by general or special order, confer on any other officer of the Government or any officer of any body corporate owned or controlled by the Government all or any of the powers of a Registrar under this Act.
11. In Section 2(23), Registrar has been defined as an officer of the Government appointed to perform the duties of a Registrar of Co-operative Societies under this Act, and includes any other officer of the Government or any officer of any body corporate owned or controlled by the Government on whom all or any of the powers of a Registrar under this Act have been conferred u/s 3.
12. This notification was issued by the Government on 8.6.1988. As per the said notification I find the Co-operative Sub Registrars are empowered to act as Registrar or notified as Registrars in respect of any registered society and their powers have been defined as follows:
"In respect of any registered society, all the powers of a Registrar under sections 72, 80, 87, 90,. 118, 129, 143 and 144 subject to the condition that the Co-operative Sub-Registrars shall so exercise so exercise the powers u/s 87 or u/s 90 only in respect of monetary cases involving a sum not exceeding Rs.10,000 and u/s 144 only in respect of cases involving a sum not exceeding Rs. 5,000.
13. On 21.7.1994, as per circular Rs. 10,000 was enhanced to Rs. 35,000 and on 29.8.1997, it is further enhanced to Rs. 50,000.
14. The fact that Co-operative Sub-Registrar is getting his powers only by this notification is not dispute. His powers are limited in regard to monetary claims only upto Rs. 10,000 when proceedings are initiated against petitioner. Decision by him that petitioner is liable to pay nearly Rs.2,75,000 on the basis of G.O.Ms.No. 431 should not have been entertained by him. In fact, the claim made by respondents was for more than Rs.5,00,000 out of which the amount paid by petitioner was adjusted and a balance of Rs.2,72,140 was sought for. The statutory authorities are bound by the provisions of the Co-operative Societies Act, and their jurisdiction is also confined only within the four corners or within four walls of notification. For deciding this issue of jurisdiction, mere is no dispute as to facts. If the matter goes to the root of jurisdiction, the matter also could be entertained by this Court. It is well settled that the question of waiver or consent wilt not confer jurisdiction on an authority if he did not have initial jurisdiction. It is a case of total lack of jurisdiction and merely because petitioner did not raise this question at the initial stages, will not confer jurisdiction on the authorities to decide this question.
15. I hold that petitioner is entitled to raise this question of jurisdiction for the first time before this court and I further hold that the order of Co-operative Sub-Registrar, the second respondent herein is without jurisdiction. Naturally, the decision of first respondent also will have to be held as illegal since he has only decided the correctness of decision of second respondent. Initial lack of jurisdiction cannot be rectified or become valid by decision in appeal, which confirms the decision.
16. Even on merits, I do not think that the respondents can succeed in this case. It is true that inspection was held and it was found that 1237 bags were sold in the open market instead of being sold through Societies. It is also admitted by respondents that the entire price of wheat was also paid by petitioner even before a demand was made. The question arises for consideration is whether the respondents are entitled to realise double the price as per Government Order.
17. Under which provision of Law Government issued such orders is not explained. It could be seen from this Government Order that the same is imposed as penalty. If it is a case of penalty, is not petitioner entitled to be heard before awarding that penalty? Both respondents 1 and 2 have awarded double the amount only on the ground that Government order has fixed the quantum and they have no discretion in considering the quantum of penalty. Penalty is imposed either towards loss of interest or as damages. In this case, question of damages will not arise since entire price of wheat has already been deposited by petitioner.
18. In De Smith, Woolf and Jewell on Judicial Review of Administrative Action, 1995 Edition, in Chapter 19, Paragraph 59, learned author says,
"Generally, the aim of damages is to compensate the plaintiff for loss caused by the defendant''s conduct. In tort, damages put the plaintiff as nearly as possible into the position he would have been in had the tortious act not occurred. "Aggravated damages" - compensation for mental distress or injured feelings - may also be awarded."
In paragraph 60 of the same Chapter, it is further said thus,
"Very exceptionally, the court may award exemplary damages in tort to deter and condemn the defendant''s conduct rather than merely to compensate the plaintiff. Such damages are generally viewed as anomalous and courts take a restrictive approach, awarding exemplary damages."
Two types of cases have been considered in granting exemplary damages. In paragraph 61 it is said that if the conduct is oppressive, arbitrary or unconstitutional action by the servants of the Government. In paragraph 62 learned author said thus,
"The meaning of oppressive, arbitrary and unconstitutional are not settled, though it is clear that the three elements are to be read disjunctively. Doubt has been expressed in the Court of Appeal as to whether every ultra vires act is � unconstitutional and the absence of aggravating features is something which ought to be taken into account in deciding whether to award exemplary damages. Conduct which is merely negligent is probably insufficient." (Italics supplied)
In paragraph 63 learned author further said thus,
"The second category of case is where the defendant committed the tortious act having calculated that the economic benefits to him flowing from the action would be greater than any damages he might be liable to pay. The third category contemplated by Lord Devlin is where there are circumstances in which the award of exemplary damages was expressly authorised by statute, none of which are particularly relevant in the public law context."
19. According to me the Government notification will not authorise third respondent to realise anything more than the loss actually sustained by it and merely because double the amount is allowed to be recovered from delinquent officer will not authorise the Society as of right to claim that amount. In this case, there is no proof of damages.
20. In the result, the writ petition is allowed. Arbitration case initiated by third respondent against petitioner in ARC No. 77 of 91-92 on the file of second respondent shall stand dismissed. Consequently, the decision of first respondent confirming the order of second respondent is also stands cancelled. There is no order as to cost. Connected W.M.Ps. are closed.
