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2024 DIGILAW 1059 (AP)

Chatrathi Kusa Kumar v. State of A. P.

2024-08-09

TARLADA RAJASEKHARA RAO

body2024
ORDER : The Writ Petition No.8831 of 2023 is filed under Article 226 of Constitution of India for the following relief/s: “…pleased to issue order or direction more particularly one in the nature of Writ of MANDAMUS declare the action of the respondents issuing Form – 9 Notice to conduct auction of petitioner’s land admeasuring Ac. 20.75 cts in R.S.No.10/1, 11/1, 14/1, 21 and 212B of Vakalapudi Village, T. Narasapuram Mandal, Eluru District without issuing any notice to the petitioner and without following mandatory procedure under law and during pendency of enquiry under Sec.71 (1) of AP Cooperative Societies Act, 1964 is illegal, arbitrary and unconstitutional and consequently direct the respondents to set aside all the proceedings against the petitioner’s property in the interest of Justice and pass such other order or orders….. The Writ Petition No.8832 of 2023 is filed under Article 226 of Constitution of India for the following relief/s: “…pleased to issue order or direction more particularly one in the nature of Writ of MANDAMUS declare the action of the respondents issuing Form – 9 Notice to conduct auction of petitioner’s land admeasuring Ac. 16.38 cts in R.S.No.10/1, 11/1, 14/1, 21 and 21/2C of Vakalapudi Village, T. Narasapuram Mandal, Eluru District without issuing any notice to the petitioner and without following mandatory procedure under law and during pendency of enquiry under Sec.71 (1) of AP Cooperative Societies Act, 1964 is illegal, arbitrary and unconstitutional and consequently direct the respondents to set aside all the proceedings against the petitioner’s property in the interest of Justice and pass such other order or orders….. 2. It is the anguish of the petitioners that the orders delivered by the respondents, based on the provisions of the Andhra Pradesh Cooperative Societies Act, 1964 (hereinafter called the Act), are without any notice as contemplated under the Act. 3. Learned counsel for the petitioners submit that the petitioners did not receive any notice prior to 2017 demanding to pay the due amount under Section 71(1) of the Act and no summon is issued to appear before the Deputy Registrar, to conduct any enquiry and no opportunity of hearing is provided to the petitioners to defend. 3. Learned counsel for the petitioners submit that the petitioners did not receive any notice prior to 2017 demanding to pay the due amount under Section 71(1) of the Act and no summon is issued to appear before the Deputy Registrar, to conduct any enquiry and no opportunity of hearing is provided to the petitioners to defend. The respondent authorities issued recovery certificate violating the principles of natural justice and basing on the said recovery certificate, the respondent authorities might have initiated auction proceedings against the petitioners and as per the notice issued under Sec.71 (1) of the Act, the outstanding amount prior to 2019 does not exceed Rs.3 to 4 lakhs and the petitioners unable to understand how the respondent authorities calculated the due amount and ascertained that the due amount is Rs.64,69,432/-. 4. Learned counsel for the respondents filed counter affidavit and stated that the contention of the petitioners is not true and further stated that the 5th respondent conducted trial under provisions of the Act, by giving adequate opportunities to the petitioners and issued 71 Certificate in Rc.No.3560/16-17 dated 31.03.2017, and after lapse of more than 6 years, the petitioners are stating that they have not received any notices etc., if the petitioners have any disputes in this regard, they have to file appeal under Section 76 of APCS Act 1964, before Andhra Pradesh Cooperative Tribunal at Vijayawada, without availing said remedy, the petitioners approached this Court, countered that the Writ Petitions are not maintainable, when there is a remedy available under provisions of the Andhra Pradesh Cooperative Societies Act, 1964. 5. Insofar as the issuance of show cause notice is concerned, the learned counsel appearing for the respondent would contend that the respondent issued show cause notice to the petitioners which were duly acknowledged by the petitioners. Despite receipt of show cause notice, the petitioners did not turn up and therefore, it is not open to the writ petitioner to contend that no show cause notice was issued to writ petitioner and the respondents would be able to prove the service of show cause notice on the petitioner. 6. Despite receipt of show cause notice, the petitioners did not turn up and therefore, it is not open to the writ petitioner to contend that no show cause notice was issued to writ petitioner and the respondents would be able to prove the service of show cause notice on the petitioner. 6. "Every notice” must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered nor delivered personally to such party, or to one of his family or servants at his residence or (if such tender or delivery is not practicable) affix to a conspicuous part of the property. The respondents on the other hand, it is asserted in the counter that a notice has been sent to the writ petitioner, but no date or method of delivery has been specified. It is the responsibility of the respondents to demonstrate that they have given notice before initiating proceedings under the Co-operative Societies Act. Except for the counter's assertion that notice was served, there was no evidence filed to prove that the service affected the petitioner. Then an adverse inference must be drawn that no notice is affected on the writ petitioner. The deponent is not Lord Rama; or the counter filed by him is epic of Ramayan to take it granted. 7. In Uma Nath Pandey Vs State of Uttar Pradesh and another, 2009 (12) SCC 40 , the Hon’ble Supreme Court held as under: "The adherence to principles of natural justice as recognised by all civilised States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. 8. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice. 9. Upon examination of the entire counter, there was no time, place or any documentary evidence filed to support the assertion that the notice was served on the Writ Petitioner. 10. Thus, the writ petitions should be allowed, accordingly, they are allowed and the Form-9 notice which was issued for conducting auction of the petitioner’s property, is hereby kept in abeyance and the respondents are at liberty to proceed against the petitioners in accordance with law. There shall be no order as to costs. As a sequel, interlocutory applications, if any pending in these Writ Petitions shall stand closed.