S. E. SETH, J. ( 1 ) PETITIONER No. 2 Smt. Jagdamba Devi Saxena is the wife of petitioner No. 1 Govind Narain Saxena. Both were members of respondent no. 6 Grih Nirman Sahakari Samiti, Maryadit at Satna. The present petition filed by them under Articles 226 and 227 of the Constitution is directed against the auction sale of house belonging to petitioner No. 1 Govind Narain Saxena in consequence of proceedings for the recovery of loan amounts together with interest said to be due to the State Government and recoverable as an arrear of land reverue under the provisions of the M. P. Co-operative Societies Act, 1960 and the rules framed thereunder. ( 2 ) IN 1954, the Central Government vide the Ministry of Works, Housing and Supples letter dated 20-11-1954 had sponsored a scheme called 'low income Group Housing Scheme' The scheme dealt with disbursement of loans by the Certral Government to State Governments for the purpose of enabling persons in the low income group to build and own their houses. The Government of Vindhya Pradesh in its turn framed certain rules called 'vindhya pradesh Low Income Group Housing Scheme Rules, 1954' for advancement of loans to eligible persor s under the scheme. It is not in dispute that in 1955-56 the petitioner No. 1 Govind Narain Saxena, obtained a loan of Rs. 3,000/- and petitioner No. 2, Smt. Jagdamba Devi Saxena, obtained a loan of Rs. 8,000/-under the said rules. The loans were taken by them as members of respondent no. 6 Grih Nirman Sahakari Saciti, Maryadit, Satna and were for the purpose of constructing a residential house on a plot of land situated ia the town. ( 3 ) IN 1977, the Collector, Satna (respondent No. 1) forwarded two certificates dated 17-1-1977 (Annexura III and IV to the petition) to the Assistant registrar, Co-operative Societies, Satna. These certificates were purported to have been issued by the Collector under sub section (1) of Section 3 of the revenue Recovery Act, 1890. Under the certificate Annexure-III, the Assistant registrar was informed that a sum of Rs. 3. 000/- with interest and penal interest was recoverable as an arrear of land revenue from petitioner No. 1 Govind narain Saxena on account of low income group housing scheme and the Assistant registrar was asked to recover the same and remit it to him. Under the certificate Annexure-III, the Assistant registrar was informed that a sum of Rs. 3. 000/- with interest and penal interest was recoverable as an arrear of land revenue from petitioner No. 1 Govind narain Saxena on account of low income group housing scheme and the Assistant registrar was asked to recover the same and remit it to him. Under the certificate Annexure-IV, the Assistant Registrar was informed that a sum of rs. 8,000/- with interest and pecal interest was recoverable from petitioner no. 2 Smt. Jagdamba Devi Saxena as an arrear of land revenue on account of low income group housing scheme and the Assistant Registrar was asked to recover the same and remit it to him. On receipt of the said certificates from the Collector, the Assistant Registrar addressed a letter dated 1-2-1977 (Annexure R-2) to the Recovery Officer, Co-operative Societies, Sa:na (respondent No. I ). It was stated by him in the said letter that the two certificates received from the Collector were being sent to him for the purpose of making recovery of the amounts mentioned from the persons concerned. ( 4 ) IT is in the abovesaid circumstances that the Recovery Officer, Co-operative societies, Satna (respondent No. 2) proceeded to recover the abovementioned amounts from the petitioners as an arrear of land revenue. The demand notices served by him on the petitioners on 19-2-1977 were Annexures v and VI to the petition. They were purported to have been issued under the m. P. Co-operative Societies Rules, 1962. In the Annexure V, which Was in respect of petitioner No. 1 Govind Narain Saxena, the demand made was for rs. 3. 000/- with interest at the rat 2 of 9% per annum till the date of realisation. In Annexure VI, which was in respect of petitioner No. 2 Smt. Jagdamba Devi saxena, the demand made was for Rs. 8,000/- with interest at the rate of 9% per annum till the date of its realisation. The petitioners were asked to appear before him on 19-2-1977 and deposit the amounts demanded from them. They were informed that in case they failed to do so the immovable and moveable properties belonging to them would be attached and sold for the recovery of the amounts due from thom. The petitioners were asked to appear before him on 19-2-1977 and deposit the amounts demanded from them. They were informed that in case they failed to do so the immovable and moveable properties belonging to them would be attached and sold for the recovery of the amounts due from thom. ( 5 ) IN pursuance of the abovesaid notices received from the Recovery officer, certain objections were preferred to him by petitioner No. 2 Smt. Jagdamba Devi on 19-2-1977 vide Annexure VII to the petition. It was pointed out that the petitioner had already paid certain instalments towards the loan of Rs. 8. 000/- due from her and that the demand notice was illegal and invalid for the reason that it did not take into account the said repayment. It was also pointed out that the demand no ice was bad for the reason that it did not disclose as to how much amount was being demanded from her as interest. It was stated that there was no basis for recovery of interest at the rate of 9% per annum and that the demand ia respect of the same was illegal. An objection was also taken to the effect that the recovery proceedings were invalid being contrary to terms and conditions subject to which the loan had been granted to the petitioner and that the Recovery Officer did not have any jurisdiction to continue with the same. ( 6 ) BUT, then, it appears that the Recovery Officer ignored the objections raised before him by the petitioner No. 2, Smt. Jagdamba Devi Saxena, and proceeded to attach House No. 32 situated in Ward No. 14 Satna Town belonging to petitioner No. 1 Govind Narain Saxena vide a warrant of attachment (Anaexurc VIII to the petition) issued by him in connection with both the recoveries on 28-4-1977. A proalamation of sale in respect of the property in question was thereafter issued by the Recovery Officer on 23-4-1981 vide anuexure IX to the petition. It war, stated in the said proclamation that unless the amount of Rs. 11,000/- with interest was paid before the said date, the property would be sold by a public auction on 23-5- 1981. ( 7 ) THEREAFTER, in the public auction that was held by the Recovery Officer on 23-5-1981, the highest bid that was received was for Rs. It war, stated in the said proclamation that unless the amount of Rs. 11,000/- with interest was paid before the said date, the property would be sold by a public auction on 23-5- 1981. ( 7 ) THEREAFTER, in the public auction that was held by the Recovery Officer on 23-5-1981, the highest bid that was received was for Rs. 56,500/- and was that of respondent No. 3 Smt. Shakuntala Devi Gupta who is the wife of Shri kuber Prasad Gupta, Advocate, who had earlier acted as a Counsel for the petitioners in a Civil suit concerning these recoveries. In fact, it is aot in dispute that it was Shri Kuber Prasad Gupta who participated in the public auction and made the bid in the name of his wife. The auc ion sale was knocked down in favour of respondent No. 3 Smt. Shakuntala Devi Gupta. It may be pointed out the just before the auction sale proceedings had begun on 23-5-1981, the petitioner No. 1 Govind Narain Saxena made an application in writing to the recovery Officer informing him that as he was expecting to obtain money from certain sources in near future, some time he granted to him to deposit the amounts due from the petitioners. This application was rejected by the Recovery officer. ( 8 ) THE events that took place between 23-5-1981 on which date the auction sale had taken place and 23-6-1981 when the same was confirmed are of the interesting nature. It appears that petitioner No. 1 Govind Narain Saxena was successful in arranging the money and was keen that the correct amounts due from the petitioners were determined and intimated to him by the competent authority so that he might be in a position to deposit the same within 30 days of the auctioa sale and avoid the consequences flowing from confirmation of sale. As he did not receive any assistance in the said regard from the Recovery officer, be approached the Collector, Satna to help him in the matter. The collector directed him to contact the Housing Commissioner, Bhopal (respondent No. 6) in the said regard. Thereupon, the petitioner No. 1 approached the housing Commissioner, Bhopal. The Housing Commissioner determined the amount payable by the petitioner No. 1 together with interest at Rs. 4,852. 16 (Rs. 2,555/- as principal and Rs. 2,297. The collector directed him to contact the Housing Commissioner, Bhopal (respondent No. 6) in the said regard. Thereupon, the petitioner No. 1 approached the housing Commissioner, Bhopal. The Housing Commissioner determined the amount payable by the petitioner No. 1 together with interest at Rs. 4,852. 16 (Rs. 2,555/- as principal and Rs. 2,297. 16 as interest) and that payable by thepetitioner No. 2 together with Interest at Rs. 12,521. 39 (Rs. 6,198. 14 as principal and Rs. 6,323. 25 as interest ). The Housing Commissioner saw no justification whatsoever for including any amount towards penal interest while determining the abovesaid amounts. On the above said determination having been made by the Housing Commissioner, the petitioner No. 1 returned to satna and deposited the above said two amounts of Rs. 4,852. 16 and rs. 12,551. 39 in the State Bank of India at Satna on 17-6-1981 to the credit of the Collector, Satna. The copies of the relevant challans in that regard are annexures XI to XIV to the petition. As the return filed on behalf of the housing Commissioner would show, the effect of the above said deposits was to clear off the loan amounts together with interest that had been due from the petitioners to the State. ( 9 ) IT appsars that as the auction sale in question was purported to have been held by the Recovery Officer under the M. P. Co-operative Societies Rules, 1962, the petitioner No. 1 with a view to avoid the consequences flowing from confirmation of sale was also very keen to deposit a sum equal to 5% of the purchase money for payment to the auction purchaser under sub-rule (4) of rule 66 of the said Rules within 30 days from the date of sale. But, then, after having fixed 23 6-1981 as the d ite for confirmation of sale, the Recovery Officer was not available in his office during the relevant psriod. In the circumstances, perhaps getting alarmed by the absence of the Recovery Officer, the pstitioner no. 1 sent a written intimation to him by registered post on 19-6-1981 informing him about the loan amounts together with interest due from the petitioners having already been cleared off in the manner stated above and also sent a cheque along with the said intimation for the amount equivalent to 5% of the purchase money for payment to the auction purchaser. I he photo copies of the relevant challans under which the loan amounts together with interest had been deposited by the petitioner in the State Bank of India at Satna on 17-6-1981 were also sent with the said intimation. The Recovery Officer rejoined his duty after his continuous absence only on 22-6-1981. It is clear from a perusal of annexure XVI to the petition which is a letter addressed by the Recovery officer to pstitioner No. 1 that ths Recovery Officer had by that time received the above said written intimation sent to him by petitioner No. 1. For the reasons stated in the said letter, the Recovery Officer refused to take cognizance of the said written intimation and proceeded to confirm the auction sale of the house in favour of respondent No. 3 Smt. Shakuntala Devi Gupta vide his order dated 23-6-1981 (Annexure XVII to the petition ). ( 10 ) THEREAFTER, as the auction sale, and the confirmation thereof, had been done by the Recovery Officer in the purported exercise of his powers under the rules framed under the M. P. Co-operative Societies Act, 1961, the petitioners filed a revision before the Joint Registrar, Co-operative Societies, Rewa. Annexure XVIII to the petition is a copy of the memo of revision. Annexure xix to the petition is a copy of the order dated 7-11-1981 passed by the Joint registrar dismissing the said revision. Thereafter, the petitioners preferred a further revision under the A ct before the Board of Revenue, Qwalior. The said revision was dismissed by the Board of Revenue vide its order dated 1-3-1982. Annexure XX is the copy of the memo of revision and A nnexure XXI is the copy of the order of the Board of Revenue. As aperusal of the above said annexures would show, the validity of the recovery proceedings in pursuance of which the house of the petitioner No. 1 had been sold by the Recovery Officer in the purported exercise of his powers under the M. P. Co-operative Societies act, 1961 and the rules framed thereunder was one of the specific grounds taken by the petitioners before the above said authorities. It was after all their attempts to have the auction sale of the house set aside before the authorities under the Act failed that the petitioners filed the present petition under Articles 226 and 227 of the Constitution in this Court on 16-3-1982. ( 11 ) NOW, as mentioned above, the recovery proceedings in question had commenced as a result of the Collector, Satna (respondent No. 1) having forwarded two certificates dated 17-1-1977 (Annexures III and IV to the petition)to the Assistant Registrar, Co-operative Societies, Satna. These certificates were purported to have been issued by the Collector under sub-section (l) of Section 3 of the Revenue Recovery Act, 1890. Under the certificate Annexure III, the Assistant Registrar was informed that a sum of Rs 3,000/- with interest and peaal interest was recoverable as an arrear of land revenue from petitioner no. 1 Govind Narain Saxena. Under the certificate Annexure IV, the Assistant registrar Was informed that a sum of Rs. 8,000/- with interest and pinal interest was recoverable from petitioner No. 2 Smt. Jagdamba Ds;vi Saxena. ( 12 ) BUT, then, it does not require much atgument to realise that the provisions of sub-section (1) of Section 3 of the Revenue Recovery Act were not at all attracted in the facts and circumstances of the case. According to the said provisions, when an arrear of land revenue, or a sum recoverable as an arrear of land revenue is payable to a Collector by a defaulter being or having property in a district other than that in which the arrear accrued or the sum is payable, the Collector may send to the Collector of that other district a certificate in the form prescribed. According to sub-section (3) of Section 3 of the act, the Collector of the other district shall, on receiving the certificate, proceed to recover the amount stated therein as if it were an arrear of land revenue which had accrued in his own district. In the facts and circumstances of the present case, there was no occasion for the Collector, Satna to have taken recourse to the provisions of Section 3 of the Act. In the facts and circumstances of the present case, there was no occasion for the Collector, Satna to have taken recourse to the provisions of Section 3 of the Act. ( 13 ) IT is being faced with the above said difficully that the concerned respondents have all along tried to take shelter under the provisions of the M. P. Co-operative Societies Act, 1960 and the rules framed thereunder with, a view to provide 'authority of law' for the recovery proceedings in question initiated against the petitioners. In their above said attempt, they have triad to place reliance on the provisions of Sections 81 and 85 of the A ;t aad the rules framed under the said sections. But, then, again, on the face of it, the provisions of section 85 of the Act had no applicability to the present case. The said section relates to execution of such 'orders' 'decisions' or 'awards' as have teen passed by the Registrar under the provisions of the Act. In the present case, admittedly, there was no 'order', 'decision' or 'award' passed by the Registrar under any of the provisions of the Act directing the recovery of any amounts from the petitioners. In the circumstances, the recovery proceedings in question, and the auction sale held by the Recovery Officer in pursuance thereof, could not be held as 'authorised' or 'valid' under Section 85 of the Act. ( 14 ) THAT brings us to consideration of the question in the light of the provisions of Section 81 of the M, P. Co-operative Societies Act. The section reads as under:"81. Recovery of sums due to Government. (1) All sums due from a society or from an Officer, member or past member or deceased member of a Society as such to State Government including any costs awarded to Government under any provisions of this Act, may on a certificate issued by the Registrar in this behalf, be recovered in the same manner as arrears of land revenue. (1) All sums due from a society or from an Officer, member or past member or deceased member of a Society as such to State Government including any costs awarded to Government under any provisions of this Act, may on a certificate issued by the Registrar in this behalf, be recovered in the same manner as arrears of land revenue. (2) Sums due from a Society to the State Government and recoverable under sub-section (1) may be recovered (a) firstly, from the property of the Society ; liability of the members of which is limited, from the members, past members, or estates of the deceased members subject to the limit of their liability ; provided that the liability of legal representatives of the deceased shall be to the extent the property of the deceased which has come to the hands of such legal representatives ; and (c) thirdly, in the case of other Societies from the members or past members or estates of the deceased members ; provided that the liability of past members or estates of deceased members in all cases shall be subject to the provisions of Section 29. " ( 15 ) ASSUMING the two certificates dated 17-1-1977 (Annexures III and IV to the petition) constitutes intimations sent by the Collector to the 'registrar' uader Section 81 regarding the amounts recoverable from the petitioners as members of the Society, it was obvious that the said amounts could not be recovered as an arrear of land revenue under the said section unless the registrar Issued certificates in that behalf. Needless to say, the issue of certificates by the Registrar under the said section was not an empty formality. The 'registrar' was to issue certificates only ia respect of such sums as were in fact 'due' from the defaulters. The said fact cast an obligation on the Registrar to issue a show cause notice to the defaulters and 'hear' them before issuing the certificates. No such thing was dona by the 'registrar' after the receipt of the alleged intimations from the Collector. In fact, he did not issue any certificates as envisaged in the section. 1 he Assistant Registrar acted ia the matter more or less like a post office and forwarded the alleged intimations to the Recovery officer (respondent No. 2) without applying his mind to the requiremeats of section 81. In fact, he did not issue any certificates as envisaged in the section. 1 he Assistant Registrar acted ia the matter more or less like a post office and forwarded the alleged intimations to the Recovery officer (respondent No. 2) without applying his mind to the requiremeats of section 81. ( 16 ) FROM the above discussion, it is clear that the recovery proceedings in question and the auction sale held by the Recovery Officer in pursuance thereof could not be held as 'authorised' or 'valid' under Section 81 of the Act. Under the said section, the sums 'due' from the defaulters had to be determined by the Registrar and were not to be left to bs determined by the Recovery officer. One of the legitimite grievances of the petitioners was that there was bo Justinjation for including any amount towards penal interest ia the sums demanded from them. Tlurj was also the other grievance that the sums did not take into account certain repayments made by them. Had the matter been dealt with under Section 81 of the Act, and had the 'registrar' issued the certificates in accordance with the requirements of the said section, the question of the Recovery Officer being required to determine the quantum of sums recoverable from tbe petitioners would not have arisen. Be that as it may, assuming section 81 was applicable to the present case, the recovery proceedings, and the auction sale held by the Recovery Officer in pursuance thereof, were null and void on account of the mandatory requirements of the said section having not been complied with in the matter. ( 17 ) IT is true that the granting of relief to a petitioner under Articles 226 and 227 of the Constitution is a discretionary matter. But, then, in the opinion of this Court, it is a fit case for exercising such a discretion ia favour of the petitioners. The alleged intimations (Annexures III and IV to the petition)sent by the Collector to the Assistant Registrar did not specify the exact suras recoverable from the petitioners. They spoke about recovery of interest and penal interest without specifying the amounts. Legally speaking, the two recovery cases pertaining to petitioner No. 1 Govind Narain Saxena and petitioner no. 2 Smt. Jagdamba Devi Saxena were distinct and separate. There were separate agreements executed by them in connection with the loans of rs. They spoke about recovery of interest and penal interest without specifying the amounts. Legally speaking, the two recovery cases pertaining to petitioner No. 1 Govind Narain Saxena and petitioner no. 2 Smt. Jagdamba Devi Saxena were distinct and separate. There were separate agreements executed by them in connection with the loans of rs. 3,000/- and Rs. 8,000/- respectively obtained by them. In the circumstances, it was not understandable what authority the Recovery Officer (respondent no. 2) had to treat the two cases as one and proceed to attach and put to auction the house belonging to petitioner No. 1 Govind Narain Saxena for the recovery of the loan amounts together with interest said to be due from both the petitioners. ( 18 ) AGAIN, the conduct of the Recovery Officer in the matter was of a doubtful nature. It does not appear unlikely that it was with the object of preventing the petitioners from depositing the requisite amount together with 5% of the purchase money under sub-rule (4) of Rule 66 of the M. P. Co-operative societies Rules and thus avoid the auction sale that the Recovery Officer made himself unavailable to the petitioners during the period of 30 days from the date of sale. It was remarkable that the petitioners took whatever steps they could take in the circumstances. They got the amounts payable by them determined by the Housing Commissioner and deposited the same in the State Bank of india at Satna on 7-6-1981 i. e. within 30 days of the auction sale. In the circumstances, there is no reason why the recovery proceedings and ths auction sale held in pursuance theraof, being null and void, this Court should refrain from granting the appropriate relief to the patitioners in this petition. ( 19 ) IT is true that Shri Kuber Prasad Gupta, Advocate, who is the husband of auction purchaser respondent No. 3 Smt. Shakuntala Devi Gupta, is not a party ia the present petition. But, then, as pointed out earlier, it is not in dispute that it was Shri Kuber Prasad Gupta who participated in the public auction and made the bid in the name of his wife. It may be mentioned that the conduct of Shri Kuber Prasad Gupta was also of a doubtful character all throughout. But, then, as pointed out earlier, it is not in dispute that it was Shri Kuber Prasad Gupta who participated in the public auction and made the bid in the name of his wife. It may be mentioned that the conduct of Shri Kuber Prasad Gupta was also of a doubtful character all throughout. Before the auction sale took place, it was he who had advised the petitioners to institute a suit for injunction in respect of the recovery proceedings pending against them and acted as their counsel in the said suit. Thereafter, it appears that he got an agreement of sale in respect of the house executed by the petitioners in his favour and got the suit dismissed. After that, it appears that when the petitioners saw through his gams, Shri Gupta filed a suit for injunction against the Recovery Officer and the petitioners on the basis of the alleged agreement of sale in his favour. But, then, realising that the auction salecould not ba avoided, he managed to purchase the house in the name of his wife respondent No. 3 Smt. Shakuntala Davi Gupta. In the circumstances, it is not surprising that the respondent No. 3 has opposed the present petition filed by the petitioners tooth and nail. Though Shri Gupta is not a party in the present petition, this Court cannot refrain from observing that he appeared to have breached the relationship of confidence existing between attorney and client. Instead of ensuring that the legitimate interests of his clients were suitably safeguarded, all his attempts were directed to grab the house which the petitioners had been able to acquire and build with the help of small savings of their lives. Be that as it may, this Court does not find any substance in the argument advanced on behalf of the respondent No. 3 that since the suit for injunction instituted by the petitioners during the pendency of the recovery proceedings was got dismissed, the petitioners were precluded from filing the present writ petition in this Court. On the date on which the said suit was filed, the auction sale had not taken place. As such, there was no bar to the petitioners challenging the auction sale in the present petition on the ground that the same was null and void for the reasons stated above. ( 20 ) CONSEQUENTLY, the petition is allowed. On the date on which the said suit was filed, the auction sale had not taken place. As such, there was no bar to the petitioners challenging the auction sale in the present petition on the ground that the same was null and void for the reasons stated above. ( 20 ) CONSEQUENTLY, the petition is allowed. The auction sale of House 32, situated in Ward No. 14 of Satna Town belonging to petitioner No. 1 Ooviad narain Saxena held by the Recovery Officer, Co-operative Societies, Satna on 23-5-1981 ia favour of respondent No. 3 Smt. Sbakuntala Devi Gupta is set aside as being null and void. As a result thereof, the confirmation of the said auction sale by the Recovery Officer on 23-6-1981 (Annexure XVII) is also set aside. So also, the order dated 7-11-1981 passed by the Joint Registrar (Annexure XIX) and the order dated 1-3-1982 (Annexure XXI) passed by the board of Revenue are set aside. There shall be no order as to costs. The outstanding security amount shall be refunded to the petitioners. .