Kashi Prasad Singh v. Collector and District Magistrate, Varanasi
1991-07-24
A.N.VARMA, R.K.GULATI
body1991
DigiLaw.ai
JUDGMENT A.N. Varma, J. - This petition is directed against the recovery proceedings which have been initiated against the petitioner at the instance of the Registrar, Co-operative Societies in the purported exercise of powers under S. 95A(l) of the U.P. Co-operative Societies Act. 2. It appears that the impugned recovery proceedings were initiated against the petitioner on a certificate issued by the Registrar under S. 95A on account of the amount which remained outstanding against him under an award. That is the case pleaded by the respondents in the counter affidavit filed on their behalf. For the petitioner two points have been urged : (1) No notice whatsover was issued by the the Registrar before he forwarded the recovery certificate under S. 95A to the Collector; and (2) The amount which was sought to be recovered from the petitioner under S. 95A was, on the own showing of the respondents, not an amount claimed as any arrears of loan advanced by a Co-operative Society to the petitioner. 3. Having heard learned counsel for the petitioner and the learned standing counsel, we are clearly of the view that both these points have merit and must be accepted. So far as the first contention is concerned, it does not appear to have been disputed in the counter affidavit that no enquiry was held by the Registrar by way of a notice to the petitioner before forwarding the recovery certificate. Under S. 95A holding of an enquiry is a sine qua non. Enquiry necessarily implies a notice to the person sought to be proceeded against under that provision. As no notice was issued to the petitioner, it is apparent that the impugned recovery proceedings cannot be sustained and must, therefore, be quashed. 4. The petitioner stands on a firmer ground on the second point. The case set up in the counter affidavit is that the amount sought to be recovered is the balance which was outstanding against the petitioner under an award. It is indisputable that special procedure which has been enacted under S. 95A of the U.P. Co-operative Societies Act, can be pressed in aid only with respect to the recovery of arrear of any loan advanced by a Co-operative society to the person sought to be proceeded against.
It is indisputable that special procedure which has been enacted under S. 95A of the U.P. Co-operative Societies Act, can be pressed in aid only with respect to the recovery of arrear of any loan advanced by a Co-operative society to the person sought to be proceeded against. The respondents do not contend that the amount sought to be recovered from the petitioner is due on account of any loan advanced to him. The amount, according to the respondents, is the amount which is the balance due under an award rendered in arbitration on the finding that the petitioner has embezzled the amount. 5. The proceedings under S. 95A were wholly incompetent in the present case and the same are liable to be quashed on this ground as well. It may be mentioned that a separate and distinct procedure has been provided under the Act under Sections 92, 93 and 94 of the U.P. Co-operative Societies Act for recovery of amount due under award. S. 95A on the other hand, is a special procedure confined and applicable only for recovery of loans. 6. In the premise, the petition succeeds and is allowed. The impugned recovery proceedings consequent upon the letter dated 30-1-1978, issued by the respondent No. 1 are quashed. There shall be no order as to costs.