Common Judgment:

Challa Gunaranjan, J.

1. Both writ petition and as well as writ appeal raise a common question with regard to the procedure to be adopted by the Andhra Pradesh Co-operative Tribunal (for short, ‘the Tribunal”) for the purpose of deciding the disputes enumerated under Section 37 of the Andhra Pradesh Mutually Aided Cooperative Societies Act, 1995 (for short, “the 1995 Act”), more particularly, in case of difference of opinion expressed by the Tribunal consisting of two members, therefore, these matters are heard together and disposed of by this common judgment.

2. Facts in brief are as follows:

The petitioner initially was registered under the provisions of the Andhra Pradesh Cooperative Societies Act, 1964 (for short, “the 1964 Act”) and later got converted as Society under the 1995 Act. As per its bye-laws, the managing committee consists 19 Directors, who were required to be elected from amongst the eligible members. In that view, in order to elect three of the Directors, notification, dated 18.08.2022, was issued proposing to conduct elections on 30.08.2022. The nomination of 3rd respondent came to be rejected and eventually the election was concluded and accordingly, three members came to be declared elected as Directors. Eventually, the 3rd respondent filed E.O.P.No.56 of 2022 on the file of the Tribunal, under Section 37(2) of the 1995 Act, to declare rejection of his nomination as null and void and consequently, to set aside the elections held on 30.08.2022, and further to direct for conducting fresh elections. The said E.O.P. was heard by the Tribunal consisting of judicial member and administrative member, who ultimately, by order, dated 21.07.2023, differed in opinions, the judicial member rendered elaborate order with reasoning dismissing the E.O.P., however, the administrative member, expressing opinion otherwise without any reasons, differed to concur with the order of the judicial member. In view of the divergent opinions expressed, ultimately, the matter has been referred to Full Bench consisting of three members for disposal of the case, in terms of Rule 20(4) of the Andhra Pradesh Cooperative Tribunals (Procedure) Rules, 1994 (for short, “the 1994 Rules”). Subsequently, the 3rd respondent had preferred application vide S.R.No.359 of 2023, with a prayer to re-open the matter enabling to send the disputed signatures of petitioner therein on Ex.A13 and Ex.B2 to the A.P. Forensic Science Laboratory at Mangalagiri for expert opinion. The said application came to be rejected as not maintainable, vide order, dated 21.09.2023. The 3rd respondent challenged the aforesaid two orders and also non-constitution of Full Bench in terms of Rule 20(4) of the 1994 Rules in W.P.No.26409 of 2023. The said writ petition came to be disposed of by order, dated 15.03.2024, directing the Commissioner for Cooperation and Registrar of Cooperative Societies to act upon the request of Deputy Registrar for the purpose of constitution of Full Bench to decide the E.O.P. in terms of Rule 20(4) of the 1994 Rules. In this background, the writ petitioner preferred W.P.No.15652 of 2024 challenging the vires of Rule 20(4) of the 1994 Rules to the extent of reference being made to Full Bench in case of divergent opinions expressed by two members to be in violation of Article 14 of the Constitution of India, besides challenging the order of the learned single Judge, dated 15.03.2023, passed in W.P.No.26409 of 2023, by preferring Writ Appeal No.894 of 2024.

3. Heard Dr.P.B.Vijay Kumar, learned senior counsel, for Smt.A.V.S. Laxmi, learned counsel for the petitioner-appellant; learned Government Pleader for Animal Husbandry and learned Government Pleader for Cooperation, appearing for the official respondents and Sri Ghanta Prasad, learned counsel appearing for the unofficial respondent.

4. Learned senior counsel appearing for the petitioner, while drawing attention of this Court to Sections 32, 37(2) of 1995 Act and Sections 75, 76, 78 and 130 of the 1964 Act and Rules 20(4) and 26 of the 1994 Rules, would contend that the Tribunal that is constituted in terms of Section 32 of the 1995 Act cannot by default follow the procedure for conducting its business with reference to the 1994 Rules, which otherwise envisaged for the purpose of dealing the appeals and reviews emanating under Sections 76 and 78 of the 1964 Act, therefore, in the absence of any specific rule making power as such conferred on the Government under the 1995 Act, the only course of action permissible for the Tribunal is to devise its own procedure which would be exercised on well settled principles and norms satisfying the test of Article 14 of the Constitution of India. He, therefore, contended that the Tribunal erred in referring the matter to Full Bench in terms of Rule 20(4) of the 1994 Rules. He also contended that even if for the sake of argument, the 1995 Rules did apply to the Tribunal in the process of deciding the disputes under Section 37(2) of the 1995 Act, as Rule 20(4) of the 1994 Rules postulates reference of the matter to the Full Bench which invariably consists of the two members, who have already expressed their opinion, the same tantamounts to reviewing their own decisions. Therefore, when the provisions of the 1995 Act conspicuously did not provide for review, such exercise of power of re- hearing under the guise of constitution of Full Bench would be without jurisdiction and therefore, the impugned Rule to the said extent should be declared to be ultra-vires or in alternative to read down the same by limiting the reference to the third member. In support of his contentions, reliance has been placed on the judgment of the co-ordinate bench of the composite High Court of Andhra Pradesh in The Prudential Cooperative Bank Ltd. v. The A.P. Cooperative Tribunal at Hyderabad(2014 SCC OnLine Hyd 1105 = 2015 (4) ALD 270 DB).

5. Per contra, learned Government Pleader for Cooperation, appearing for the official respondents, opposing the above submissions, would contend that inasmuch as Section 32 of the 1995 Act clearly envisaged constitution of Tribunals and for that purpose the provisions of Section 75 of the 1964 Act has been mutatis mutandis applied, accordingly, the 1994 Rules made in pursuance to sub-section (5) of Section 75 of the 1964 Act would govern the procedure before the Tribunal. He further contended that though the 1994 Rules were meant to deal with the appeals and reviews to be instituted under Sections 76 and 78 of the 1964 Act, unlike the original proceedings in deciding the disputes enumerated under Section 37 of the 1995 Act, in sum and substance, inasmuch as, the Rules merely regulate the procedure and conduct of business of Tribunal, the nature of proceedings, either original or appellate, being decided by the Tribunal would be of no significance. Therefore, the impugned Rule is validly made and petitioner cannot lay challenge to the said Rule unless it is shown the rule so framed is without legislative backing or competence, nor is in violation of any fundamental rights, or provisions of the Constitution of India. In support of his submissions, reliance has been placed on the judgment of the Hon’ble Apex Court in Union of India v. R.Gandhi, President, Madras Bar Association((2010) 11 SCC 1).

6. Sri Ghanta Prasad, learned counsel appearing for the unofficial respondent both in writ petition and writ appeal, while reiterating the submissions made by the learned Government Pleader for Cooperation appearing for the official respondents, tried to support the impugned Rule as well as the order of the learned single Judge.

7. We have given our anxious consideration to the respective submissions made on either side.

8. In nutshell the entire of controversy revolves around, firstly, applicability of Rule 20(4) of the 1994 Rules to the proceedings before the Tribunal in deciding the disputes under Section 37 of the 1995 Act, and, secondly, in case of difference of opinion amongst two members of the Tribunal, the reference to Full Bench in terms of Rule 20(4) of the 1994 Rules, would in a way amount to reviewing the opinion and decision of the two members, who have already expressed their views, and such course would be permissible to sustain the Rule.

9. Before going into the aforesaid aspect, it is relevant to notice the following provisions of law:

                  “(i) Sections 75, 76, 78 and 130 of the 1964 Act.

                  CHAPTER XI

                  Appeal, Revision and Review

                  75. Constitution of Co-operative Tribunal:— The Government may, for the purpose of this Act, by notification constitute as many Tribunals as may be necessary for such area or areas as may be specified in the notification.

                  (2) The Tribunal shall consist of a Chairman and not more than two other members to be appointed by the Government.

                  (3) The Chairman shall be a person who is or has been a judicial officer not below the rank of a District Judge and a member shall be a person, who holds or has held a post not below the rank of Additional Registrar of Cooperative Societies.

                  (4) The Government may, from time to time, likewise reconstitute any Tribunal constituted under sub-section (1) or may abolish such Tribunal.

                  (5) The quorum to constitute a meeting of a Tribunal and the manner of taking decision thereat and the procedure and conduct of its business shall be such as may be prescribed.

                  (6) No Act or proceeding of any Tribunal shall be deemed to be invalid by reason only of the existence of any vacancy among its members or any defect, in the constitution or reconstitution thereof.

                  76. Appeal:— Any person or society aggrieved by any decision passed or order made under Section 6, Section 9A, Section 9B, Section 9C, Section 12A, Section 13. 3[XXX] Section 16, Section 17, Section 19, Section 21, Section 21A, Section 21AA, Section 23, sub-section (3) of Section 32, Section 34, Section 34A, Section 60, Section 62, Section 64, Section 66, Section 70, Section 71, Section 73 and Section 117 may appeal to the Tribunal :

                  Provided that nothing in this sub-section shall apply to any order of withdrawal or transfer of a dispute under sub-section (3) of Section 62.

                  (2) On a reference made by the Registrar of Cooperative Societies, the Tribunal shall call for and examine the records of any proceeding which is appealable to it for the purpose of satisfying itself as to the legality or propriety of any decision or order passed and where it appears to the Tribunal that any such decision or order should be modified, annulled or reversed, the Tribunal may pass such order thereon as it may deem fit:

                  (3) Any appeal under sub-section (1) shall, subject to the other provisions of this Act, be preferred within sixty days from the date of communication to the appellant of the decision, refusal or order complained of but the Tribunal may admit an appeal preferred after the said period of sixty days, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within the said period.

                  (4) In disposing of an appeal under this section, the Tribunal may, after giving the parties an opportunity of making their representations, pass such order thereon as it may deem fit.

                  (5) The decision or order of the Tribunal on appeal shall be final.

                  (6) The Tribunal may pass such interim orders pending the decision on the appeal as may deem fit.

                  (7) The Tribunal may award costs in any proceedings before that authority to be paid either out of the funds of the society or by such party to the appeal as the Tribunal may deem fit.]

                  77. Revision:— (1) …..

                  78. Review:— (1) The appellant or the applicant for revision or the respondent may apply for the review of any order passed under Section 76, or Section 77 on the basis of the discovery of new and important facts which, after the exercise of due diligence were not then within his knowledge or could not be produced by him when the order was made, or on the basis of some mistake or error apparent on the face of the record or for any other sufficient reason :

                  Provided that no application for review shall be preferred more than once in respect of the same order.

                  (2) Every application for review shall be preferred 3[to the authority which passed the order under Section 76 or Section 77] within such time and in such manner as may be prescribed.

                  (3) The decision or order passed on the application in review shall be final.

                  (4) The authority competent to pass orders on application for review may pass such interlocutory orders pending the decision on the application for review as that authority may deem fit.

                  (5) The authority referred to in sub-section (4) may award costs in any proceedings for review to be paid either out of the funds of the society or by such party to the application for review as it may deem fit.

                  ***

                  (ii) Rules 49-B and 56 of the 1964 Rules:

                  49-B. A dispute relating to or in connection with any election to the office of the President of a Primary Society, a Committee, a member of a committee or an officer shall be preferred to the Tribunal having jurisdiction over the place where the main office of the society is situated within_ one month from the date of declaration of results of such election and such dispute shall be disposed of within a period of four months from the date of filing of the dispute.

                  56. Application for review:- (1) Every application for review under sub-section (2) of Section 78 of the Act, shall be made by any party within ninety days from the date of communication of the order passed under Section 76 or Section 77 of the Act.

                  (2) No final order shall be passed on such application unless notice has been given to all parties interested to make their representations.

                  ***

                  (iii) Rule 20(4) and Rule 26 of the 1994 Rules:

                  (3) ….

                  (4) Where an appeal is heard by a Bench consisting of two members whether it consists of the Chairman or not, and the members are divided in opinion, on any point or points, such point or points, shall be referred to the Full Bench consisting of three members for disposal.

                  ***

                  (iv) Sections 32 and 37 of the 1995 Act.

                  “32. Constitution of Tribunals - (1) The Government may for the purposes of this Act by notification, constitute as many tribunals as may be necessary for such area or areas as may be specified in the notification.

                  (2) The Provisions of section 75 of the Andhra Pradesh Co- operative Societies Act, 1964 (Act 7 of 1964) shall, mutatis mutandis apply for the constitution of co-operative tribunals under this section.

                  37. Settlement of disputes - (1) If any dispute arises touching the constitution, management or business of a Co-operative Society, and matters connected therewith or incidental thereto:-

                  (a) among members, past members or persons claiming through members, past members and deceased members; or

                  (b) between member, past member or a person claiming through a member, past member or deceased member and the Co- operative Society, its Board, Director, office-bearer or liquidator, past or present; or

                  (c) between the Co-operative Society or its Board and any past Board, Director, office bearer, or the nominee, heirs, or legal representative of any deceased Director, deceased officer, of the Cooperative Society; or

                  (d) between the Co-operative Society and any other Co- operative Society; or

                  (e) between the promoter of a Co-operative Society and the Registrar, or a Co-operative Society and the Registrar; or

                  (f) between a Co-operative Society and liquidator of and other Cooperative Society, between the liquidators of two or more Co- operative Societies;

                  such disputes may be referred to the Co-operative Tribunal for decision:

                  Provided that no dispute shall be referred under this section to the Cooperative Tribunal unless the disputing parties exhausted all remedies that may be available in the bye-laws for the settlement of disputes.

                  (2) Any dispute relating to elections held to a Co-operative Society may be referred to the Co-operative Tribunal for decision.”

10. Under Section 75 of the 1964 Act, which falls under Chapter-XI of the 1964 Act, the Government has been empowered to constitute cooperative Tribunal, which consists of Chairman and not more than two other members. The Chairman shall be a person of judicial officer not below the rank of District Judge and the members not to be below the rank of Additional Registrar of Cooperative Societies. Sub-section (5) thereof envisages that the Government to come up with the procedure and the manner of conducting the business of the Tribunal including the quorum, by prescribing appropriate Rules. Section 76 of the 1964 Act deals with institution of appeals against the decisions or orders those to be passed under various Sections specifically referred thereto. Likewise, Section 78 provides for review against the order of the Tribunal passed under Section 76 or against the revisional order passed under Section 77 of the 1964 Act. Section 2(l) defines the expression ‘prescribed’ as envisaged in sub-section (5) of Section 75 of the 1964 Act to mean “prescribed” by way of Rules. Section 130 empowers the State Government to make rules.

11. In furtherance to the rule-making power, the Government has formulated the 1964 Rules, which deal with various aspects and facets of the implementation of the provisions of the 1964 Act. Rule 49-B and Rule 56 of the 1964 Rules, in particular, deal with the manner in which election dispute to be engaged with the Tribunal and entertaining application for review as contemplated under Section 78(2) of the 1964 Act, respectively.

12. Similarly, the Government in exercise of powers under Section 75(5) r/w. Section 130 of the 1964 Act, has specified the 1994 Rules, which eventually regulate the procedure and conduct of the business of the Tribunal, including the quorum. Chapter-III consisting of Rules 7 to 13, envisages the manner in which an appeal or review to be presented and registered. Further, Chapter IV contemplates that the Chairman of the Tribunal to distribute the work among the members and that all single members shall hear the appeals, review applications in admission and interim orders on rotation basis, and once the said proceedings are admitted, the same shall be heard by two-member Bench consisting of a judicial member. Further, the Chairman is also empowered to constitute a three-member Bench, whenever it is necessary basing on nature of the case. Chapter IV, consisting of Rules 14 to 21, envisages the manner in which the proceedings to be conducted, heard, and orders be passed. Rule 20 deals with the manner in which the final order has to be pronounced. In terms of sub-rule (4) thereof, in case the Bench consisting of two members for any reason differs in opinion on any point or points, such point or points, shall be referred to the Full Bench consisting of three members for disposal. In Chapter-V which deals with miscellaneous provisions such as issuance of copies of documents, service of notice, maintenance of register, refund of fees etc., in Rule 26 specifies that whenever the subject Rules are silent on the question of any procedure, the Tribunal is bestowed with powers to follow the procedure stipulated under the Code of Civil Procedure, 1908.

13. A conspectus reading and analysis of the provisions referred to above under both the enactments and the two sets of Rules made under 1964 Act, which was prior to in time, makes it clear that the Legislature has borrowed certain of the provisions of earlier enactment on a particular subject, in the present context, in particular, the constitution of the Tribunal for the purpose of conferring jurisdiction on it to decide or deal with the proceedings as envisaged under Sections 33, 34 and 37 of the 1994 Act. Therefore, by advent of borrowing Section 75 of 1964 Act and incorporating by reference into the latter Act i.e., 1995 Act, the provisions so incorporated become part and parcel of latter Act and the legal incidence of Legislation by incorporation amounts to making it part of the existing law. This would mean that Section 75 of the 1964 Act which dealt with the constitution of the Tribunals, in all force, operates to be part of 1995 Act. Having said that, sub-Section (5) of Section 75 also envisage prescription of Rules for the purpose of devising the procedure and conduct of business of the Tribunal in the process of discharging its functions, and accordingly, the 1994 Rules came to be issued. Inasmuch as the substantive provision under Section 75 itself has been borrowed and is made applicable mutatis mutandis, even the rules so framed under the said provision would equally apply to govern the procedure.

14. Learned Senior Counsel appearing for the petitioner though contended that 1994 Rules merely envisage to deal with the procedure in instituting appeals and revisions alone, which are in the nature of appellate rules, rather in the present context, the proceedings before Tribunal being more in the nature of original proceedings, the same would not really apply, as both proceedings being separate and distinct, we are not persuaded with the said submission for the reason that sub- section (5) of Section 75 merely contemplated the prescription of procedure and conduct of business of the Tribunal and rightly, 1994 Rules envisaged in extenso the manner in which the proceedings are required to be entertained, processed, registered, proceedings be conducted, quorum of the Tribunal, the manner of hearings and passing of final orders. These Rules are procedural in nature and really cannot be confined to be made applicable to only a particular set of proceedings. Be that as it may, it is also significant to note that when the Legislature has come up with the latter 1995 enactment, it cannot be said to be unaware of the 1964 Act and the 1994 Rules, when it borrowed and incorporated Section 75 of the 1964 Act by reference in Section 32 of the 1995 Act, hence, for all purposes the 1994 Rules must be construed to be equally applicable for proceedings arising under latter enactment also.

15. More or less in similar scenario, a co-ordinate Bench of the composite High Court of Andhra Pradesh in Prudential Cooperative Bank Ltd. case1, had an occasion to deal with the question as to whether Section 36 of the 1995 Act intended to extend the application of provision of an appeal as provided under Section 76 of the 1964 Act to an order passed in execution proceedings under Section 36 of the 1995 Act and also whether Rule 52 of the 1964 Rules made in exercise of powers of delegated legislation conferred on the Government under Section 130 of the 1964 Act, as was not incorporated by reference to any of provisions of 1995 Act, could be invoked for execution of awards passed under 1995 Act.

16. Section 36 of the 1995 Act, like in the present case, borrowed the provisions of Chapter-X of the 1964 Act to apply mutatis mutandis. Chapter-X of 1964 Act relates to execution of decisions, decrees and orders. Chapter XI of 1964 Act relates to appeal, revision, and review. Section 75 thereunder relates to the constitution of a cooperative tribunal and Section 76, which forms part of Chapter-XI relates to appeals. Any person or society aggrieved by any decision passed or order made under various Sections of the 1964 Act was entitled to appeal to the Tribunal. In that context, while interpreting the provisions falling under Chapters-X and XI of 1964 Act and vis-à-vis Section 36 of the 1964 Act, it was held that no statutory appeal is available to cooperative societies registered under 1995 Act against the decision or order passed by the Tribunal in exercise of its jurisdiction under Section 37 of the 1995 Act. Insofar as the other aspect of application of Rule 52 of 1964 Rules, which otherwise were not specifically extended to by reference to any of the provisions of 1995 Act, it was held that the Tribunal was well within its powers to invoke Rule 52 of the 1964 Rules, inasmuch as, the substantive provisions were already made applicable due to advent of incorporation of Chapter-X of 1964 Act by reference in Section 36 of the 1995 Act. This Court further held that even in the absence of rules prescribing the procedure for executing decrees, decisions or orders, in order to make the working and functioning of Chapter-X of 1964 Act meaningful and effective and not mere nugatory for aforesaid reason of non-prescription of procedural rules, the Tribunal is entitled to evolve its own procedure, ofcourse, such procedure to be reasonable and satisfy the test of Article 14 of the Constitution of India. It is apt to refer to the following observations of the said judgment, which read as under:

                  “As Rule 52 of the 1964 Rules prescribes the procedure for execution of decisions, decrees or orders as stipulated in Chapter X of the 1964 Act, it is not impermissible to read Rule 52 of the 1964 Rules as a part of Chapter X of the 1964 Act, in which event the procedure prescribed in Rule 52 of the 1964 Rules, along with Chapter X of the 1964 Act, can be treated as having been incorporated by reference in Section 36 of the 1995 Act. The 1995 Act was notified on 27.05.1995 and came into force on 01.06.1995. Both the 1964 Act and the 1964 Rules were in existence when the 1995 Act was made. As the State Legislature cannot be said to be unaware of the 1964 Act and the 1964 Rules when it incorporated Chapter X of the 1964 Act by reference in Section 36 of the 1995 Act, and as the Rules made under the 1964 Act must be construed as part of the Act itself, the legislature can be presumed to have intended to incorporate the 1964 Rules, to the extent they relate to Chapter X of the 1964 Act (i.e., Rule 52 of the 1964 Rules), also in Section 36 of the 1995 Act. On such a construction, it is permissible for the Tribunal to invoke Rule 52 of the 1964 Rules in the execution of the awards passed under the 1995 Act.

                  Even, in the absence of Rules prescribing the procedure for executing decrees, decisions or orders, the provisions of Chapter X of the 1964 Act, which have been incorporated by reference in Section 36 of the 1995 Act, must be given effect to. The whole working and functioning of Chapter X of the 1964 Act, as incorporated in Section 36 of the 1995 Act, cannot be withheld and rendered nugatory only for the reason of absence of the rules prescribing the procedure. Absence of Rules will not render the Act inoperative, and would not curtail the power conferred under the Act. The power vested under the Act would still be exercisable as provided under the provision. (Orissa State (Prevention & Control of Pollution) Board v. Orient Paper Mills). While the power conferred by the Act can be exercised even in the absence of rules, such power should be exercised on well settled principles and norms which would satisfy the test of Article 14 of the Constitution. (Delhi Science Forum v. Union of India). It is not even urged before us that the procedure prescribed for execution of decisions, decrees and orders in Rule 52 of the 1964 Rules is in violation of Article 14 of the Constitution of India.

                  Even in the absence of Rules, the Tribunal, while executing awards under Section 36 of the 1995 Act, can follow any reasonable procedure. As Rule 52 of the 1964 Rules is also a reasonable procedure for execution of awards, it is not impermissible for the Tribunal to follow the procedure prescribed therein. It must be borne in mind that the onus, to demonstrate that a decision of the Tribunal is vitiated for adopting a procedure not sanctioned by the 1995 Act, is on the person who questions the validity thereof. This onus is discharged only by satisfying the court that the authority has adopted a procedure which does not satisfy the test of Article 14 of the Constitution or which is against the provisions of the statute in question. (Delhi Science Forum40). It has not even contended before us that the procedure, prescribed under Rule 52 of the 1964 Rules, does not satisfy the test of Article 14 of the Constitution or is against the provisions of the 1964 Act. The Tribunal is, therefore, not disabled from following the procedure prescribed in Rule 52 of the 1964 Rules in executing awards under the 1995 Act.”

17. We are in respectful agreement with the view expressed above, which has significant relevance even to the present case on hand. As observed by us, by borrowing Section 75 of the 1964 Act, the Legislature intended to not only extend the provision insofar as constitution of Tribunals, but also intended to even adopt the procedure and the manner of conducting business of Tribunal as envisaged under the 1994 Rules as well, equally to the proceedings those to be instituted under Section 37 of the 1995 Act. Accordingly, we hold that 1994 Rules in all aspects would equally govern the procedure for institution of proceedings as contemplated under Section 37 of the 1995 Act for the purpose of institution, hearing and disposal of cases.

18. In the proceedings initiated under Section 37(2) of the1995 Act, the judicial member and the administrative member have expressed different opinions, therefore, by order, dated 21.07.2023, the matter has been referred to Full Bench in terms of Rule 20(4) of the 1994 Rules. The constitution of Tribunal as envisaged under Section 75(2) of the 1964 Act consists of Chairman and not more than two other members, of which the Chairman shall be a judicial officer, not below the rank of District Judge, and the other members not below the rank of Additional Registrar of cooperative societies. Sub-section (5) of Section 75 envisages that the Government to frame rules prescribing the procedure and conduct of business of Tribunal, which inter alia, also includes the quorum of the Tribunal. Rule 13 of the 1994 Rules specifies that it is for the Chairman of the Tribunal to distribute the work among the members and that all admissions and interim applications shall be heard by a single member, and upon admission of the matters, the same shall be heard by two-member Bench consisting of a judicial member. Further, the Chairman is also empowered to constitute a three-Member Bench whenever it is necessary basing on the nature of the case. In that background, considering the total number of members that can be appointed being maximum of three, learned senior counsel appearing for the petitioner contented that inasmuch as judicial member and one administrative member since have already expressed respective opinions, referring the same to Full Bench, consisting of three members virtually amounts to reviewing of opinions expressed by very same two members. In the absence of any specific power as such traceable to the provisions of 1995 Act for entertaining any review, referring the matter to the Full Bench again virtually tantamounts to review, therefore, the impugned Rule to that extent would either be ultra-vires or alternatively be read down by holding that such reference contemplated should be to the third member, but not to the Full Bench. We find considerable force in the argument so advanced. Unlike in the 1964 Act, there is no express provision as such providing for review under the 1995 Act. Nonetheless, when there is difference of opinion amongst the two members, it is fundamental that the matter be referred to third member for his decision, which cumulatively would make the majority opinion.

19. Learned senior counsel appearing for the petitioner, by taking us to Section 98(2) of Code of Civil Procedure r/w. Rule 26 of the 1994 Rules, contended that the impugned Rule providing for reference to Full Bench is in teeth of aforesaid provisions is unsustainable. No doubt, Section 98(2) of CPC candidly elucidates that when there is disagreement between two members of the Bench, which concurs in a judgment varying or reversing the decree appealed from, the point on which such disagreement or difference in opinions expressed be referred to the third member. Rule 26 of the 1994 Rules envisages that the Tribunal shall follow the procedure stipulated under C.P.C. only if in case the aforesaid Rules were silent on the question of any procedure. Hence, the above prescribed procedure under Section 98(2) of C.P.C. could have been made applicable before the Tribunal, but for Rule 26 which explicitly excluded such course of action, as the Rules already govern the procedure. Be that as it may, constitution of Full Bench consisting of judicial member and administrative member, who already expressed opinions, besides the third member, virtually amounts to reviewing of the opinion and view expressed by respective members. The purport and intention of rule making authority definitely intended to make a way for majority opinion, preserving the purpose and purport of the ultimate object in constituting the Tribunal to render a meaningful decision.

20. The principle of reading down of a provision whether be substantive or delegated legislation has fairly been now settled by various authoritative pronouncements of the Hon’ble Apex Court. In this connection, we may appropriately refer to the judgment of the Hon’ble Apex Court in Allahabad University v. Geetanjali Tiwari (Pandey)( (2024 SCC OnLine 3776), in particular, in the following paragraphs.

                  “19. Examining the reasons assigned by the High Court for reading down Reg.10(f)(iii) of the 2018 Regulations would necessitate an understanding of what the principle of ‘reading down’ is all about. Precedents on ‘reading down’ of a provision are legion and only a few of them are referred to here.

                  20. In CST v. Radhakrishan22, this Court held:

                  “15. … In considering the validity of a statute the presumption is in favour of its constitutionality and the burden is upon him who attacks it to show that there has been a clear transgression of constitutional principles. For sustaining the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived. It must always be presumed that the Legislature understands and correctly appreciates the need of its own people and that discrimination, if any, is based on adequate grounds. It is well settled that courts will be justified in giving a liberal interpretation to the section in order to avoid constitutional invalidity. These principles have given rise to rule of reading down the sections if it becomes necessary to uphold the validity of the sections. …”

                  (emphasis supplied)

                  21. Hon'ble P.B. Sawant, J. (as His Lordship then was) in his concurring judgment in Delhi Transport Corpn. v. D.T.C. Mazdoor Congress23 captured the rule of ‘reading down’ as follows:

                  “255. It is thus clear that the doctrine of reading down or of recasting the statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from being struck down on account of its unconstitutionality. It is an extension of the principle that when two interpretations are possible — one rendering it constitutional and the other making it unconstitutional, the former should be preferred. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. The second situation which summons its aid is where the provisions of the statute are vague and ambiguous and it is possible to gather the intentions of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made. However, when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the court to remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it. What is further, if the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided. One of the situations further where the doctrine can never be called into play is where the statute requires extensive additions and deletions. Not only it is no part of the court's duty to undertake such exercise, but it is beyond its jurisdiction to do so.”

                  (emphasis supplied)

                  Hon'ble K. Ramaswamy, J. (as His Lordship then was), in a separate concurring opinion, had the occasion to consider authorities on statutory interpretation and observed:

                  323. In Craies Statute Law (7th edn., Chapter 5 at page 64) it is stated that where the words of an Act are clear, there is no need for applying any of the principles of interpretation which are merely presumptions in cases of ambiguity in the statute. The safer and more correct course of dealing with the question of construction is to take the words themselves and arrive, if possible, at their meaning without in the first place referring to cases. Where an ambiguity arises to supposed intention of the legislature, one of the statutory constructions, the court propounded, is the doctrine of reading down. Lord Reid in Federal Steam Navigation Co. v. Department of Trade and Industry [[1974] 2 All ER 97, 100] (as also extracted by Cross Statutory Interpretation, Butterworths’ edition, 1976 at page 43 in proposition 3) has stated thus:

                  … the judge may read in words which he considers to be necessarily implied by words which are already in the statute and he has a limited power to add to, alter or ignore statutory words in order to prevent a provision from being unintelligible, absurd or totally unreasonable, unworkable or totally irreconcilable with the rest of the statute.’

                  324. At page 92 of the Cross Statutory Interpretation, the author has stated that:‘The power to add to, alter or ignore statutory words is an extremely limited one. Generally speaking it can only be exercised where there has been a demonstrable mistake on the part of the draftsman or where the consequence of applying the words in their ordinary, or discernible secondary, meaning would be utterly unreasonable. Even then the mistake may be thought to be beyond correction by the court, or the tenor of the statute may be such as to preclude the addition of words to avoid an unreasonable result.’ Therefore, the Doctrine of Reading Down is an internal aid to construe the words or phrase in statute to give reasonable meaning, but not to detract, distort or emasculate the language so as to give the supposed purpose to avoid unconstitutionality.

                  ***

                  326. It is, thus, clear that the object of reading down is to keep the operation of the statute within the purpose of the Act and constitutionally valid. …”

                  (emphasis supplied)

                  22. The question of ‘reading down’ a provision arises if it is found that the provision is ultra vires as it stands. This is the law laid down in Electronics Corpn. of India Ltd. v. Secy., Revenue Deptt., Govt. of A.P.24.

                  23. An instructive passage is found in B.R. Enterprises v. State of U.P.25, reading thus:

                  “81. … Thus, where there are two possible interpretations, one invalidating the law and the other upholding, the latter should be adopted. For this, the courts have been endeavouring, sometimes to give restrictive or expansive meaning keeping in view the nature of legislation, may be beneficial, penal or fiscal etc. Cumulatively it is to subserve the object of the legislation. Old golden rule is of respecting the wisdom of legislature that they are aware of the law and would never have intended for an invalid legislation. This also keeps courts within their track and checks individual zeal of going wayward. Yet in spite of this, if the impugned legislation cannot be saved the courts shall not hesitate to strike it down. Similarly, for upholding any provision, if it could be saved by reading it down, it should be done, unless plain words are so clear to be in defiance of the Constitution. These interpretations spring out because of concern of the courts to salvage a legislation to achieve its objective and not to let it fall merely because of a possible ingenious interpretation. The words are not static but dynamic. This infuses fertility in the field of interpretation. This equally helps to save an Act but also the cause of attack on the Act. Here the courts have to play a cautious role of weeding out the wild from the crop, of course, without infringing the Constitution. For doing this, the courts have taken help from the Preamble, Objects, the scheme of the Act, its historical background, the purpose for enacting such a provision, the mischief, if any which existed, which is sought to be eliminated ”

                  (emphasis supplied)

                  24. In State of Rajasthan v. Sanyam Lodha26, this Court was considering whether absent a challenge to the law/rule, the same could be read down. Answering in the negative, Hon'ble R.V. Raveendran, J. (as His Lordship then was) speaking for the bench held:

                  “12. It is true that any provision of an enactment can be read down so as to erase the obnoxious or unconstitutional element in it or to bring it in conformity with the object of such enactment. Similarly, a rule forming part of executive instructions can also be read down to save it from invalidity or to bring it in conformity with the avowed policy of the Government. When courts find a rule to be defective or violative of the constitutional or statutory provision, they tend to save the rule, wherever possible and practical, by reading it down by a benevolent interpretation, rather than declare it as unconstitutional or invalid. But such an occasion did not arise in this case as there was no challenge to the validity of Rule 5 and the parties were not at issue on the validity of the said Rule. We are therefore of the view that in the absence of any challenge to the Relief Fund Rules and an opportunity to the State Government to defend the validity of Rule 5, the High Court ought not to have modified or read down the said Rule.”

                  25. Caution has been sounded in Subramanian Swamy v. Raju27 in the following words:

                  “61. Reading down the provisions of a statute cannot be resorted to when the meaning thereof is plain and unambiguous and the legislative intent is clear. The fundamental principle of the ‘reading down’ doctrine can be summarised as follows. Courts must read the legislation literally in the first instance. If on such reading and understanding the vice of unconstitutionality is attracted, the courts must explore whether there has been an unintended legislative omission. If such an intendment can be reasonably implied without undertaking what, unmistakably, would be a legislative exercise, the Act may be read down to save it from unconstitutionality. The above is a fairly well-established and well- accepted principle of interpretation which having been reiterated by this Court time and again would obviate the necessity of any recall of the huge number of precedents…”

                  26. On the question as to whether harshness of a provision could afford reason for reading down the same, we find that a three-Judge bench of this Court in Authorised Officer, Central Bank of India v. Shanmugavelu28 speaking through Hon'ble J.B. Pardiwala, J. has held as follows:

                  “100. Thus, the principle of ‘Reading Down’ a provision emanates from a very well-settled canon of law, that is, the courts while examining the validity of a particular statute should always endeavour towards upholding its validity, and striking down a legislation should always be the last resort. “Reading Down” a provision is one of the many methods, the court may turn to when it finds that a particular provision if for its plain meaning cannot be saved from invalidation and so by restricting or reading it down, the court makes it workable so as to salvage and save the provision from invalidation. Rule of ‘Reading Down’ is only for the limited purpose of making a provision workable and its objective achievable.

                  101. The High Court in its impugned order resorted to reading down Rule 9(5) of the SARFAESI Rules not because its plain meaning would result in the provision being rendered invalid or unworkable or the statute's objective being defeated, but because it would result in the same harsh consequence of forfeiture of the entire earnest-money deposit irrespective of the extent of default in payment of balance amount.

                  102. However, harshness of a provision is no reason to read down the same, if its plain meaning is unambiguous and perfectly valid. A law/rule should be beneficial in the sense that it should suppress the mischief and advance the remedy. The harsh consequence of forfeiture of the entire earnest-money deposit has been consciously incorporated by the legislature in Rule 9(5) of the SARFAESI Rules so as to sub-serve the larger object of the SARFAESI Act of timely resolving the bad debts of the country. The idea behind prescribing such a harsh consequence is not illusory, it is to attach a legal sanctity to an auction process once conducted under the SARFAESI Act from ultimately getting concluded.”

                  (emphasis supplied)

                  27. Thus, what follows from the above authoritative discussions is this. Whenever a court is seized of a question of vires of a primary legislation/subordinate legislation or a part of it, a presumption of constitutionality is attached to the impugned provision and the courts would ordinarily strive to save the impugned provision from being declared ultra vires; however, there could be situations where the subordinate legislation (like a rule or a regulation) is challenged on the ground of excessive delegation or is itself violative of the enabling/primary legislation under which it is framed or even breaches constitutional guarantees. ‘Reading down’ of a provision is a subsidiary rule of interpretation of statutes, which the courts tend to employ in situations to save the subordinate legislation like a rule or a regulation, wherever possible and practical, by reading it down by a benevolent interpretation, rather than declaring it as unconstitutional or invalid. However, it has been clarified that it is to be used sparingly, and in limited circumstances. Additionally, it is clear that the act of reading down a provision, must be undertaken only if doing so can keep the operation of the statute “within the purpose of the Act and constitutionally valid”.

21. Keeping in view the above principles, in the facts of the present case, since the power of review is conspicuously absent in substantive legislation of the 1995 Act, once the members of two-member Bench express their opinions, they become functus officio, therefore, they cannot once again rehear the matter under the guise of reference. The Tribunal, being creature of a statute, would source its power to the substantive provisions and does not possess inherent power as such for embarking on reviewing the opinions or decisions rendered. The same, therefore, goes to the root of the matter and any such attempt would be ultra vires to the provisions of the 1995 Act and without jurisdiction. This anomaly can only be remedied by reading down the impugned Rule with intent to protect and preserve the benevolent object in making the Rule.

22. The jurisdiction of the Tribunal in deciding the disputes envisaged under Section 37 of the 1995 Act would in no manner be affected, and remains uncompromised. Therefore, in order to make the rule workable, be harmonious with the substantive provisions of the 1964 Act as well as 1995 Act rather than striking it down entirely, we deem it appropriate to read it down.

23. We, therefore, accordingly, modify the order of the learned Single Judge to the extent of directing the respondents to take necessary steps for referring the matter to the third member rather than to the Full Bench. On such reference being made to the third member, he shall hear the matter afresh after giving due notice and opportunity to the parties concerned, and pass appropriate speaking order answering the reference within a period of three months.

24. Accordingly, both the writ petition and the writ appeal stand disposed of. No order as to costs.

As a sequel, miscellaneous petitions pending in this case, if any, shall stand closed.