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Allahabad High Court · body

2000 DIGILAW 1496 (ALL)

PATI TIWARI v. SADHAN SAHKARI SAMITI

2000-12-05

PRADEEP KANT

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PRADEEP KANT, J. ( 1 ) THE petitioner, being aggrieved by the order passed in appeal under Section 98 of the U. P. Cooperative Societies Act (hereinafter referred to as the Act) by the District Assistant Registrar, cooperative Societies, U. P. , has approached this Court under Article 226 of the Constitution of india. ( 2 ) SADHAN Sahkari Samiti, Lohramau district Sultanpur initiated recovery proceedings against the petitioner in respect of a loan which was said to have been taken by the petitioner in repayment whereof he committed default. The petitioner approached the Arbitrator under Section 70 of the act, which matter was referred to the Additional District Cooperative Officer, Sultanpur and thus the Additional District Cooperative Officer was appointed as Arbitrator under the orders of the Registrar. Before the Arbitrator, the petitioner as well as Sadhan Sahkari Samiti laid their claim. Petitioners main contention was that, firstly, he was not the person entitled for having a loan to the extent which was said to have been granted to him, as he was a landless person and secondly, he has not taken this loan. The sole Arbitrator recorded a finding that the Lekhpal has made the entry in the Societys register in which the petitioner has been shown to be possessed of 10 acres of land. He has made this entry for covering up the loan which was granted to the petitioner although he was not entitled for the same. The sole Arbitrator, however, found that the loan amount was utilized by the petitioner but in view of the illegality and irregularity deliberately committed by the Secretary, he passed an award directing that the Secretary has caused harm to the Society and, therefore, the principal amount should be realised from the secretary of the Society. So far as the interest and other principal amount was concerned, that was directed to be realised from the petitioner. Aggrieved by this award, the Society filed an appeal before the District Assistant Registrar, Cooperative Societies, Sultanpur, who, vide the impugned order, allowed the appeal and directed the amount due to be recovered from the petitioner. ( 3 ) LEARNED counsel for the petitioner strenuously urged that the appeal before the District assistant Registrar was not maintainable in view of the provisions of Section 98 (1) (h), as the appeal lies to the Cooperative Tribunal. ( 3 ) LEARNED counsel for the petitioner strenuously urged that the appeal before the District assistant Registrar was not maintainable in view of the provisions of Section 98 (1) (h), as the appeal lies to the Cooperative Tribunal. The second submission of the learned counsel for the petitioner is that once the finding has been recorded that the petitioner was a landless person and, therefore, was not entitled for the loan granted to him, no recovery can be made from him. Apart from this, it has also been urged that it was the manipulation made by the Secretary of the Samiti in collusion with the Lekhpal in so far as the petitioner was shown to be a person possessed of certain land, as such the recovery should be made from the Secretary and not from the petitioner. ( 4 ) IT is not disputed that the controversy in question was referable to Section 70 of the Act and arbitration could have very well proceeded with in accordance with the said provisions. The attack has been made on the ground that the dispute was referred to the Arbitrator in accordance with the provisions of Section 71 (1) (b) and, therefore, in accordance with sub-section (4) of section 71, the decision given by the Arbitrator shall be an award which shall be appealable only before the Cooperative Tribunal and not before the District Assistant Registrar or the registrar in view of Sections 98 (2) and 98 (3) of the Act. ( 5 ) SECTION 3 of the U. P. Cooperative Societies Act provides that the State Government may appoint a person to be Registrar of the Cooperative Societies for the State whereas sub-section (2) of Section 3 lays down that the State Government may, for the purposes of this Act, also appoint other persons to assist the Registrar and by general or special order confer on any such person all or any of the powers of the Registrar. Sub-section (3) specifically says that where any order has been made under sub-section (2) conferring on any person all or any of the powers of the Registrar under any provision of this Act, such order shall be deemed to confer on him all the powers under that provision as may be amended from time to time. Learned counsel for the State has brought to the notice of the Court the Notification dated 24. Learned counsel for the State has brought to the notice of the Court the Notification dated 24. 6. 1969 published in the U. P. Gazette on 15. 7. 1969 wherein the Government, in exercise of power under sub-section (2) of section 3 of the U. P. Cooperative Societies Act, has appointed the District Assistant Registrar, cooperative Societies, U. P. as Registrar and has conferred certain specified powers upon him. Sub-para (b) of Para 4 of this notification confers such powers with respect to such dispute arising out of Section 70 or 71 of the U. P. Cooperative Societies Act. The District Assistant registrar, therefore, would be deemed to be Registrar with all the powers conferred on him in accordance with sub-section (2) of Section 3 of the Act and the notification issued in this regard by the Government, referred to above. The question whether the appeal should have been filed before the Cooperative Tribunal or the Registrar has to be considered in the light of the provisions regarding appeals provided under the Act. Section 98 (1) (h) says that an appeal against the award made by an arbitrator or board of arbitrators under sub-section (1) or sub-section (2) of Section 71 shall lie. Sub-section (2) of Section 98 clearly specifies against whose orders it would lie before the Cooperative Tribunal and against which order, the same would lie before the Registrar. Sub-section (2) of Section 98 provides as under : " (2) An appeal under clauses (c), (d), (e), (f), (g), (k) and (l) of sub-section (1) shall be preferred to the Tribunal, and appeal under clauses (a), (b), (h), (i), (j), (m) and (n) of the said sub-section shall be preferred : (a) if the decision or order was made by the Registrar, to the State Government ; or (b) if the decision or order or award was made by any other person or authority, to the Registrar. (c) if the order or award was made on a dispute relating to an election, to the Tribunal. (c) if the order or award was made on a dispute relating to an election, to the Tribunal. ( 6 ) SUB-SECTION (3) of Section 98 provides that notwithstanding anything contained in clause (b)of sub-section (2), the State Government may by notification in the Gazette, direct that appeals against awards mentioned in clause (h) of sub-section (1) shall, in respect of such cases or class of cases, as may be specified in the notification lie to the Tribunal, and thereupon any person aggrieved by such award, may appeal to the Tribunal. No material has been placed before this court to establish that any such notification has been published in the Gazette as provided in sub-section (3) of Section 98. Admittedly the award in the instant case has been passed by an officer other than the Registrar appointed by him, namely, the Additional District Cooperative officer. The matter has been referred to him under Section 71 (1) (b ). The appeal would, therefore, He before the Registrar in view of the provisions of sub-section (2) of Section 98 of the Act. Reference in this regard may be made to the case of Amar Singh Rathore v. District magistrate, 1991 ALJ 759 (DB ). In view of my finding that the District Assistant Registrar would be the Registrar for the purposes of this provision for which a notification has already been issued by the State Government duly published in the Gazette and the award having been passed by a person/officer other than the Registrar, the appeal was rightly filed before the district Assistant Registrar. The District Assistant Registrar was thus fully competent to entertain and decide the appeal. This argument of the learned counsel for the petitioner has thus no force and is hereby rejected. The District Assistant Registrar was thus fully competent to entertain and decide the appeal. This argument of the learned counsel for the petitioner has thus no force and is hereby rejected. ( 7 ) SO far as the next argument of the learned counsel for the petitioner that in view of the finding recorded by the appellate authority also that the petitioner was a landless person and he did not possess nor there was any land in the name of his father so as to entitle him to have the loan in question and, therefore, the appellate authority ought to have dismissed the appeal and would have absolved the petitioner from making payment is concerned, has to be rejected simply on the ground that a person who has taken advantage of the loan amount cannot be permitted to say that the recovery should not be made from him because he was not entitled for sanctioning of the said loan or for disbursement of the said loan. It has been found by the sole arbitrator as well as by the appellate authority also that the loan amount is to be recovered and it is a different matter that the sole arbitrator has fastened the liability of recovery of principal amount so advanced upon the secretary of the Samiti barring the interest and other principal amount of loan for which the petitioner was entitled under the consumer loan whereas the appellate authority has also found that the amount in question has to be recovered from the petitioner. The petitioner has thus not been able to establish before the two authorities below that he has not taken the loan and as such it being a finding arrived at by both the authorities below that the loan was advanced to the petitioner, he is liable for repayment of the same. The petitioner cannot be absolved and exonerated from the recovery simply because some irregularity or illegality was committed by the Secretary, the Lekhpal or the Tehsildar for the purposes of making the petitioner entitled for disbursement of loan to him. Even if it is accepted that the Secretary and Lekhpal committed gross illegality in upgrading the petitioner by showing certain land in the name of the petitioner in the Societys register, this could have benefited the petitioner only and none else. Even if it is accepted that the Secretary and Lekhpal committed gross illegality in upgrading the petitioner by showing certain land in the name of the petitioner in the Societys register, this could have benefited the petitioner only and none else. If the petitioner has taken the advantage of the loan because of the entries made in the Societys register, it cannot be said that the petitioner would not be liable for repayment of the same. So far as the findings with respect to the conduct of the Secretary and Lekhpal is concerned, it would be necessary to observe that the opposite parties or the concerned authority should not have exonerated these two persons/ officials without holding any enquiry into the matter and in case it was found that these two persons had made certain incorrect entries which has resulted in disbursement of loan to an ineligible person, the disciplinary action could have been taken against them. So far as the recovery of loan is concerned, it is not the case of either of the parties that the loan amount was not used or utilized by the petitioner but was misappropriated by the secretary or Lekhpal, the question of recovery from the Secretary or the Lekhpal does not arise. It would have been proper that suitable disciplinary proceedings had been initiated against the secretary, Tehsildar and the Lekhpal and appropriate action had been taken against them. The petitioner can in no case be permitted to urge that since he has been wrongly shown as a person entitled for having the loan, he cannot be required to pay back the amount which he has taken. The writ petition has no force and is liable to be dismissed. ( 8 ) LEARNED counsel for the petitioner lastly submitted that he does not now dispute the liability of the petitioner and therefore, he may be permitted to deposit the entire amount in instalments. Learned counsel for the respondents has no objection to this prayer. The petitioner shall deposit 50% of the total amount within to months, say by February 15, 2001 and rest of the balance amount with up-to-date interest in the next two months. Learned counsel for the respondents has no objection to this prayer. The petitioner shall deposit 50% of the total amount within to months, say by February 15, 2001 and rest of the balance amount with up-to-date interest in the next two months. In case the petitioner deposits the initial amount, no coercive measures shall be taken against him for recovery but in case he fails to deposit the amount within the stipulated time, the entire amount can be recovered from him in lump sum. ( 9 ) THE writ petition is dismissed. No order as to costs. .