JUDGMENT

SHARMA, J.:—The question arising in this case is whether a matter, if it comes within the scope of S. 40 of the Bihar and Orissa Co-operative Societies Act, 1935 (hereinafter referred to as the Act) has to be excluded from the purview of S. 48 of the Act.

2. Special leave is granted.

3. The facts relevant for the decision of this appeal are in a short compass. The respondent No.1 was Depot Manager under the appellant Marketing Union Limited and during his tenure as such, a shortage of coal was detected. A claim was accordingly made for the said loss by the appellant and a reference was made to the Assistant Registrar, Co-operative Societies, respondent No. 3, under S. 48 of the Act. The Assistant Registrar absolved the respondent No. I from the alleged liability and an appeal was filed by the appellant under S. 48(6) of the Act before the Joint Registrar , Co-operative Societies, respondent No. 2, who accepted the appellants case, rejected the defence and made an award accordingly. This was challenged before the Patna High Court by a writ application under Art. 226 of the Constitution of India. The High Court held that since the matter was covered by the provisions of S. 40, S. 48 could not apply. Consequently the award was held to be illegal. So far S. 40 was concerned, it was pointed out that the claim had to be rejected on the ground of limitation. Thus without considering the other questions raised by the parties, the High Court allowed the writ petition by the impugned judgment which is under challenge in the present appeal.

4. It has been contended on behalf of the appellant that the provisions of S. 48 are wide enough to embrace the dispute which has been the subject matter of the present case and they cannot be given a narrow interpretation so as to exclude their application to cases which may also be covered by S. 40. In reply reliance has been placed on behalf of the respondent No. 1 on the decision in Purnea Ministerial Government Officers Co-operative Society Ltd. v. Abdul Quddus, .1963 BLJR 969 which has found favour with the High Court.

5. Section 40 pertaining to surcharge, provides that if as a result of an audit or inquiry it appears to the Registrar that any person who has taken part in the organisation or management of the society or any past or present officer of the society has either made a payment contrary to law or has been guilty of misappropriation or of having committed similar acts detailed therein, the Registrar may inquire into the matter and make an order requiring him to contribute an appropriate sum by way of compensation to the assests of the society. The second Proviso to sub-sec.(1) of the said section says that no such order shall be passed in respect of any act or omission which had occurred more than six years earlier. The provisions of sub-sec. (1) of S. 48 (omitting the Explanations which are not relevant for the present issue) dealing with Disputes are in the following terms:

(1) If any dispute touching the business of a registered society (other than a dispute regarding disciplinary action taken by the society or its managing committee against a paid servant of the society) arises -

(a) amongst members, past members, persons claiming through members, past members or deceased members, and sureties of members, past members or deceased members, whether such sureties are members or non-members; or

(b) between a member, past member, persons claiming through a member, past member or deceased member, or sureties of members, past members or deceased members, whether such sureties are members or non-members, and the society, its managing committee or any officer, agent or servant of the society; or

(c) between the society or its managing committee and any past or present officer, agent or servant of the society; or

(d) between the society and any other registered society; or

(e) between a financing bank authorised under the provisions of sub-sec. (1) of S. 16 and a person who is not a member of