Munukuru Nagaratnamma v. Special Cadre Deputy Registrar Officer on Special Duty, Nellore Dist. Co-operative Central Bank Limited, Nellore
2002-06-26
V.V.S.RAO
body2002
DigiLaw.ai
V. V. S. RAO, J. ( 1 ) THESE two writ petitions, which were taken up for hearing, were heard together finally with the consent of both the Counsel and disposed of by this common order at the admission stage. ( 2 ) IN both these writ petitions, the petitioners who availed agricultural loans from the respective Primary Agricultural Co-operative Societies of their respective villages challenge the action of the respondents in issuing the sale auction notice under Sub-rule (11) of Rule 52 of the A. P. Co-operative Societies Rules, 1964 ( the Rules ) and Section 104 of A. P. Cooperative Societies Act, 1964 ( the Act ) notifying the sale of petitioners property in realisation of the loan amount as per the certificate of recovery issued by the Deputy Registrar of Co-operative Societies, the first respondent herein. The properties of the petitioners in W. P. No. 11407 of 2002 will be auctioned on 28-6-2002, whereas the auction of the properties of the petitioners in W. P. No. 11314 of 2002 is scheduled on 30-6-2002. ( 3 ) THE facts are not in dispute. What is, however, seriously contended by Sri Ch. C. Krishna Reddy, learned Counsel for the petitioners is that pursuant to the orders of the Government in G. O. Ms. No. 38. Revenue (Relief-II) Department, dated 29-1-2002 as notified in the A. P. Gazette, Part I - Extraordinary, dated 29-1-2002, certain Mandais in Nellore District have been notified as drought Mandais by the District Collector and, therefore, as per the said notification, the respondents are bound to postpone the collection of loans from the petitioners. ( 4 ) I have perused G. O. Ms. No. 38, dated 29-1-2002 whereunder, while declaring various Mandais in all the Districts except Hyderabad as drought areas, the District Collectors were requested to take necessary action for further identification of specific areas affected in the Mandais and notify in the District Gazette so as to enable "the farmers to avail credit facilities from the banks". Any direction as to postponement or waiver of co-operative loans or interest thereon is conspicuous by absence in the notification issued by the Government of Andhra Pradesh on 29-1-2002 vide G. O. Ms. No. 38, dated 29-1-2002. However, the notification issued vide Rc. No. D. 3.
Any direction as to postponement or waiver of co-operative loans or interest thereon is conspicuous by absence in the notification issued by the Government of Andhra Pradesh on 29-1-2002 vide G. O. Ms. No. 38, dated 29-1-2002. However, the notification issued vide Rc. No. D. 3. 5706/ 01, dated 13-3-2002 by the District Collector, Nellore and published in the special supplement to the Nellore District Gazette Part I Extraordinary reads as under. A In pursuance of the orders issued in G. O. Ms. No. 38 Revenue (Relief-11) Department dated 29-1-2002, the District Collector, Nellore hereby declares the following Revenue Mandais in Nellore District as affected by drought for the year 2001-2002 for the purpose of postponement of collection of Water Tax, Loans, cesses including drainage cess and drainage maintenance fee and also execution of relief works wherever warranted. ( 5 ) A reading of the above would show that the District Collector ex facie did not properly consider the purport of the Government s notification vide G. O. Ms. No. 38, dated 29-1-2002. In the absence of any further clarification consequent to the said Government Order (notification), it was certainly not proper for the District Collector to postpone the collection of taxes, loans etc. Be that as it may, the learned Asst. Govt. Pleader for Co-operation does not dispute this and is also not able to reconcile the glaring contradiction in G. O. Ms. No. 38, dated 29-1-2002 on one hand and the notification issued by the District Collector, Nellore, dated 15-3-2002 on the other. In my considered opinion, the notification issued by the District Collector does not give any indication that he directed postponement of collection of co-operative loans. ( 6 ) INSOFAR as the merits of the case are concerned, the learned Counsel for the petitioners submits that for the last four Fasli years there has been serious drought in Muthkur and Ozili Mandais and, therefore, the petitioners could not repay the amount. He also submits that there were floods in 2001-2002 resulting in crop loss. He further submits that the petitioners are witling to deposit 25% of the loan amount with the Primary Agricultural Co-operative Societies. In these circumstances, he would urge that any coercive recovery of loans would be arbitrary and illegal. ( 7 ) THE impugned order/auction notice is an appealable one under Section 76 (1) of the Act.
He further submits that the petitioners are witling to deposit 25% of the loan amount with the Primary Agricultural Co-operative Societies. In these circumstances, he would urge that any coercive recovery of loans would be arbitrary and illegal. ( 7 ) THE impugned order/auction notice is an appealable one under Section 76 (1) of the Act. The petitioners have an effective alternative remedy of appeal before the A. P. Co-operative Tribunal, Vijayawada under Section 76 (1) of the Act. The said Tribunal is also vested with the power to stay or suspend the orders of recovery or awards under Sub-section (6) of Section 76 of the Act subject to A. P. Co-operative Tribunal (Procedure) Rules, 1994. It is well settled that when the statute creates a special Tribunal and confers jurisdiction, this Court, ordinarily, does not interfere at the threshold usurping the jurisdiction which the law vests only in a special Tribunal. If any authority is needed, a reference may be made to K. S. Rashid and Son v. ITI Commission, AIR 1954 SC 207 , wherein a Constitution Bench of the Supreme Court held as follows. So far as the second point is concerned, the High Court relies upon the ordinary rule of construction that where the Legislature has passed a new statute giving a new remedy, that remedy is the only one which could be pursued. It is said that the Taxation on Income (Investigation Commission) Act, 1947 itself provides a remedy against any wrong or illegal order of the Investigating Commission and under Section 8 (5) of the Act, the aggrieved party can apply to the appropriate Commissioner of Income Tax to refer to the High Court any question of law arising out of such order and thereupon the provisions of Sections 66 and 66-A of the Indian Income Tax Act shall apply with this modification that the reference shall be heard by a Bench of not less than three Judges of the High Court. We think that it is not necessary for us to express any final opinion in this case as to whether Section 8 (5) of the Act is to be regarded as providing the only remedy available to the aggrieved party and that it excludes altogether the remedy provided for under Article 226 of the Constitution.
We think that it is not necessary for us to express any final opinion in this case as to whether Section 8 (5) of the Act is to be regarded as providing the only remedy available to the aggrieved party and that it excludes altogether the remedy provided for under Article 226 of the Constitution. For purposes of this case it is enough to state that the remedy provided for in Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. ( 8 ) IN Carl Still G. M. B. H. v. State of Bihar, AIR 1961 SC 1615 , another Constitution Bench of the Supreme Court considered the question whether this Court can exercise jurisdiction under Article 226 of the Constitution even though authorities are constituted by special enactments to decide disputes, it is apt to excerpt the following passage. . . . . . IT is true that if a statute sets up a Tribunal and confides to it jurisdiction over certain matters and if a proceeding is properly taken before it in respect of such matters, the High Court will not, in the exercise of its extraordinary jurisdiction under Article 226, issue a prerogative writ so as to remove the proceedings out of the hands of the Tribunal or interfere with their course before it. But it is equally well settled that, when proceedings are taken before a Tribunal under a provision of taw, which is ultra vires, it is open to a party aggrieved thereby to move the Court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent without his being obliged to wait until those proceedings run their full course. ( 9 ) IN the light of the authoritative pronouncements of the Supreme Court, this Court cannot entertain the writ petitions when there is an effective alternative remedy of appeal to the Co-operative Tribunal. ( 10 ) BEFORE I leave this case, I must observe, the notification issued by the District Collector, Nellore is quite contrary to the policy adumbrated in G. O. Ms.
( 10 ) BEFORE I leave this case, I must observe, the notification issued by the District Collector, Nellore is quite contrary to the policy adumbrated in G. O. Ms. No. 38, dated 29-1-2002, which is notified in the A. P. Gazette and it requires a serious consideration by the Government Office is, therefore, directed to communicate a copy of this order/judgment to the Chief Secretary, Government of Andhra Pradesh, Secretariat, Hyderabad, forthwith and the Chief Secretary is requested to look into the matter and take necessary steps for clarifying the position, as otherwise, the notification issued by the District Collector, Nellore, dated 13-3-2002 would give false hopes to large number of agriculturists who availed co-operative loans from Primary Agricultural Co-operative Societies as well as District Co-operative Central Banks. ( 11 ) IN the result, having heard the learned Counsel for the petitioners and the learned Asst. Govt. Pleader for Co-operation, the writ petition is disposed of giving liberty to the petitioners to avail the remedy of appeal before the Co-operative Tribunal within a period of one week from today. It is open to the learned Tribunal to pass appropriate interlocutory orders if any application is made by the petitioners. Further, it is also open to the petitioners to file any objections or claim petitions before the Sale Officer, the second respondent herein, under Sub-rule (21) of Rule 52 of the Rules, in which event the second respondent is bound to pass necessary orders under Clause (b) thereof. . No order as to costs.