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1984 DIGILAW 524 (ALL)

Abdul Jamil Khan v. Sahkari Ganna Samiti

1984-07-26

J.N.DUBEY, V.K.MEHROTRA

body1984
JUDGMENT V.K. MEHROTRA, J. 1. THE two petitioners, Abdul Jamil Khan and Abdul Khalil Khan in this petition under Article 226 of the Constitution, are brothers. They have approached this Court for relief against the action of the respondents, namely, the Sahkari Ganna Samiti, Rampur and the Registrar, Cooperative Societies, U. P. Lucknow as well as the Recovery Officer, Cane Department, Rampur and the cane production Inspector Rampur in trying to sell off the land holding of the petitioners for realisation of the amount of three awards which were made under rule 115 of the U. P. Cooperative Societies Rules framed under the U. P. Cooperative Societies Act 1912 by resort to the procedure provided in section 92 of the U. P. Cooperative Societies Act, 1965. 2. IT appears that three awards dated August 31, 1967, December 30, 1967 and March 26, 1968 were made by the Arbitrator in a dispute initiated by the Sahkari Ganna Samiti, Rampur. Those awards have become final. The petitioners were served with notices by the Recovery Officer calling upon them to deposit the amounts of the awards failing which the property of the petitioners was to be sold for realisation of those amounts. These notices were followed by orders of attachment of the holdings of the two petitioners made on December 3, 1973. By a separate notice of the same date the property which had been placed under attachment was directed to be sold on January 25, 1974. The petitioners filed objection before the Recovery Officer alleging, inter alia, that they are not liable for payment of any amount under the alleged awards which were made without service of any notice upon them while proceedings were pending before the Arbitrator. The objection also was that the first petitioner had never agreed to be a surety as had been mentioned in the awards. The Recovery Officer declined to go into the merits of the objection because in his opinion such objections were not competent before him and he could not ignore the awards. This decision was rendered by the Recovery Officer on January 16, 1974. Therefore, the petitioners came to this Court. 3. THE first submission of Sri Vishnu Sahai appearing for the petitioner is that the awards having been passed behind the back of the petitioners and without notice to them were a nullity and could not be enforced against the petitioners. This decision was rendered by the Recovery Officer on January 16, 1974. Therefore, the petitioners came to this Court. 3. THE first submission of Sri Vishnu Sahai appearing for the petitioner is that the awards having been passed behind the back of the petitioners and without notice to them were a nullity and could not be enforced against the petitioners. He has drawn our attention to the averments made in paragraphs 4, 5, 6 and 7 of the petition wherein it has been asserted that no notice whatsoever was served upon the two petitioners while the matter was being dealt with by the Arbitrator. THE respondent have controverted these averments by saying that notices were actually served upon the two petitioners and have drawn our attention to the recital in the awards that the petitioner had not appeared inspite of notices having been served upon them. It is obvious that the fact whether notices were actually served upon the two petitioners before the awards were made is highly disputed between the parties and it is not possible for us, in these summary proceedings to go into the correctness or otherwise of the claim of the petitioners in this respect. We are not inclined to accept the submission that the three awards were not enforceable against the petitioners as they have been made without notice to them. 4. THE next submission of Sri Vishnu Sahai which, in our opinion, is of substance may now be noticed. THE submission is that the proceedings culminating in the awards were indubitably initiated under the provisions of the 1912 Act and in respect of the first two awards they had come to a conclusion prior to the enforcement of the 1965 Act which was enforced with effect from January 28, 1968 through a notification dated December 30, 1966. As such, the provisions of section 92 of the 1965 Act which were sought to be involved by the respondent were not available to them. The first two awards, as seen earlier, were made on August 31, 1967 and December 30, 1967 respectively, i. e. before the enforcement of the 1965 Act. As such, the provisions of section 92 of the 1965 Act which were sought to be involved by the respondent were not available to them. The first two awards, as seen earlier, were made on August 31, 1967 and December 30, 1967 respectively, i. e. before the enforcement of the 1965 Act. There is nothing in the 1965 Act to lead us to the view that these awards could be enforced with the aid of section 92 of the Act by attachment and sale of the property of the petitioners by the Registrar or any officer authorised by him. Section 134 of the 1965 Act, which deals with the repeals etc. does not permit the enforcement of an award made under the earlier Act by attachment and sale of the property of the petitioners by the Registrar. It is only section 6 of U. P. General Clauses Act which can be invoked by the respondents in terms of sub-section (1) of section 134 of the 1965 Act. Section 6 of the U. P. General Clauses Act, insofar as it is material, reads;- "6. Effect of repeal where any Uttar Pradesh Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- (a).............................. (b).............................. (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed: (d).............................. (e) affect any remedy, or any investigation or legal proceeding commenced before the repealing Act shall have come into operation in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any remedy may be enforced and any such investigation or legal proceeding may be continued and concluded, and any such penalty, forfeiture, punishment imposed as if the repealed Act had not been passed. 5. RULES had been framed under the 1912 Act and amongst them and rule 137 provided that the awards of arbitrators could be enforced in either of the following ways; (i) On a requisition to the Collector of the district made by the Registrar, all sums recoverable under the award or decision............be recovered as if they were arrears of land revenue. (ii) On application to the Civil Court having jurisdiction over the subject-matter the award or decision, that Court shall enforce the award or decision as if it were a decree of the court. (ii) On application to the Civil Court having jurisdiction over the subject-matter the award or decision, that Court shall enforce the award or decision as if it were a decree of the court. Section 92 of 1965 Act is in these terms; "92. Execution of certain orders and awards-Every award made under section 71, and capable of execution in the manner provided below, and every order so capable of execution made by the Registrar under section 67 or sub section (2) of Section 68 or under section 91, or by the liquidator under section 74 or by an appellate authority on appeal under Section 97 or 98 or on review under Section 99 or as an interlocutory order under Section 100 shall, if not carried out, be executed- (a) in the manner provided by law for the time being in force for the recovery of arrears of land reveunes; Provided that an application for the recovery of any such sum is made to the Collector and accompanied by a certificate signed by the Registrar or any person authorised by him in this behalf; Provided further such application is made within 12 years from the date fixed for payment in the order of award and if no such date is fixed from the date of the order or award, as the case may be; Or (b) by the Registrar or any other person subordinate to him and empowered by him in this behalf, by attachment and sale or sale without attachment of any property of the person or the co-operative society against whom the order or award has been made; or (c) by the Civil Court having jurisdiction over the matter as if order or award were the decree of that court. 6. IT is noticeable that clauses (a) and (c) of section 92 provide for recovery of the amount of award in terms akin to the provisions contained in Rule 137 aforesaid. Clause (b) is an additional mode provided by the 1965 Act for recovery. This clause would thus not be available to the respondents for affecting recovery of the amounts due under the awards which had become final for the enforcement of 1965 Act either with the aid of section 6 of the U. P. General Clauses Act or with the aid of any provision of 1965 Act including section 132 to which we shall presently refer. The last award of which the amount is sought to be recovered from petitioner no. 2 is of March 26, 1968. Proceedings relating to this award were pending on January 28, 1968 when the 1965 Act came into operation. These proceedings would be deemed to have been instituted under the 1965 Act and continued in accordance with the provisions thereof in view of section 132 (1) which reads thus : "132. Other provisions in regard to existing sociteies-(1) Any suit, other proceedings, inquiry or inspection instituted or commenced under the Cooperative Soceites Act, 1912 (Act II of 1912) shall so far as may be deemed to have been instituted or commenced under this Act and may be continued accordingly." 7. SINCE the award of March 26, 1968 is to be treated to be an award made under the provisions of the 1965 Act it is obvious that it will be an award made under section 71 of the Act. As such, the execution of this award by resort to attachment and sale of the property of the second petitioner by the Registrar by virtue of the power conferred upon him under section 92 (b) of 1965 Act was legally possible. The petitioners cannot claim any relief in respect of the amount of this award in the present proceedings. 8. SRI I. H. Khan, appearing for the respondents, urged that the amount of each of these awards could be recovered by sale of the property of the petitioners by the Registrar or an officer authorised by him on account of the power contained in section 91 of the 1965 Act. It is not possible for us to accept this submission for a reading of section 91 makes it clear that the Registrar is empowered to make an order directing payment of any outstanding demand due to the society by a member thereof by the sale of the property or any interest of that member in that property only if the property is subject to a charge under section 39. No material has been brought on the record of this petition by the respondents from which it can be inferred that the holdings of the petitioners which are going to be sold can be treated to be subject to a charge under section 39 of the 1965 Act. No material has been brought on the record of this petition by the respondents from which it can be inferred that the holdings of the petitioners which are going to be sold can be treated to be subject to a charge under section 39 of the 1965 Act. In fact, learned counsel for the respondents did not make any effort to persuade us to the view that these holdings of the petitioners are subject to any such charge. In view of the above discussion, we allow the writ petition in part. The respondents are restrained from proceeding to realise the amount of the awards dated August 31, 1967 and December 30, 1967 (Annexures 1 and 2) by recourse to the provisions of section 92 (b) of the U. P. Cooperative Societies Act, 1965. Consequently, the demand notices of which copies have been filed as Annexures 4 and 5 to this petition are quashed. 9. WE direct the parties to bear their own costs. Petition partly allowed.