The competence of the Deputy Registrar to pass the award and the impermissibility of settling to validate an illegal act.

JUDGMENT :

Amrita Sinha, J.

1. The instant writ petition has been filed seeking a direction upon the respondents not to give any effect and/ or further effect to the order dated 19th July, 2022 and the award dated 28th July, 2022 passed by the arbitrator being the Deputy Registrar of Cooperative Societies inter alia, on the ground that the Deputy Registrar of Cooperative Societies lacks the jurisdiction to pass the award and the jurisdiction lies only with the Registrar of Cooperative Societies.

2. The award was passed by the arbitrator after hearing all the necessary parties. The arbitrator after consideration of the memorandum of statements and after conclusion of hearing on examination of evidences on record, came to a considered finding that lease of the scheduled property was not in conformity with Sections 28 and 2(2) of the West Bengal Cooperative Societies Act, 2006, herein after referred to as ‘the Act’ for short and with Rule 53 (1) of the West Bengal Cooperative Societies Rules, 2011, herein after referred to as ‘the Rules’ and the same was done without maintaining financial propriety. The arbitrator set aside the lease with immediate effect.

3. After initial hearing of the instant writ petition the Court directed the parties to file affidavit. Further direction was passed to add Nayara Energy Limited, the Company which granted franchise to the petitioner, as the respondent no. 9. In accordance with the direction passed by the Court, Nayara Energy Limited has been added as party respondent and notice served upon the said party. None appeared at the time of hearing on behalf of the added respondent.

4. During pendency of the writ petition the petitioners and the private respondent nos. 7 and 8 entered into a settlement and jointly filed an interlocutory application for recording settlement and compromise between the disputant parties. In the said application prayer has been made to set aside the award and to restore the lease executed by the Society in favour of the petitioners and to quash the arbitration proceeding.

5. Learned senior counsel representing the applicants submits that the matter has already been settled in between the parties out of Court after exercise of good offices of friends, accordingly, leave may be granted to withdraw the earlier writ petition being WPA 5322 of 2022 and also the consequent order passed in the said writ petition on 19th April, 2022.

6. Averment has been made in the application that the respondent nos. 7 and 8 approached the Cooperative Society for settlement and the Society took resolution for settlement and to give effect to the lease already executed and registered by the Society. The respondent nos. 7 and 8 abandoned their claim both against the Cooperative Society and the writ petitioners and they have undertaken to cooperate with the petitioners in running the petrol pump.

7. In support of their submission regarding permissibility to withdraw the writ petition on settlement of the dispute in between the disputant parties the petitioners relies upon the judgment delivered by the Hon’ble Supreme Court in the matter of M.J. Exporters Private Limited vs. Union of India & Ors. reported in (2021) 13 SCC 543 (paragraphs 13,14 & 15) and the judgment delivered by the Hon’ble Supreme Court in the matter of Triloki Nath Singh vs. Anirudh Singh (dead) through legal representatives & Ors. reported in (2020) 6 SCC 629 paragraphs 18 to 22.

8. Learned advocate representing the State respondents and particularly the Registrar of Cooperative Societies submits that the petitioner may seek withdrawal of the writ petition simpliciter but the award ought not to be interfered with by the Court. It has been submitted that the award was passed in compliance with the direction passed by the Court upon hearing respective submissions made on behalf of all the parties. As the arbitrator adjudicated the issue on merits, the award cannot be set aside without the same being decided on merits.

9. In reply to the su