Orissa High Court
Aska Central Multipurposes ... vs Secretary, Orissa Khadi And Village ... on 4 February, 1992
Equivalent citations: AIR1992ORI238, 1992(II)OLR118, AIR 1992 ORISSA 238, (1992) 2 ORISSA LR 118 (1993) 1 BANKCLR 157, (1993) 1 BANKCLR 157
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT G.B. Patnaik, J.
1. An interesting question of law has been raised in this writ application, namely, sums due from a Cooperative Society to the Orissa Khadi and village. Industries Board established under the Orissa Khadi and Village Industries Board Act whether is recoverable in accordance with the procedure laid down in subsection (1) of Section 103 of the Orissa Co-operative Societies Act (hereinafter referred to as 'the Co-operative Societies Act') or is recoverable as an arrear of land revenue in accordance with the provisions contained in the Orissa Public Demands Recovery Act by virtue of Section 33-A of the Orissa Khadi and Village Industries Board Act, 1955 (hereinafter referred to as 'the Khadi Act').
2. Admittedly, the petitioner Society had taken loan from the Khadi Board and as the loan amount could not be paid the Khadi Board filed a requisition before the Certificate Officer for recovery of the amount in question. On the basis of the said requisition, the Certificate Officer having signed the certificate, a proceeding under the Orissa Public Demands Recovery Act was initiated. The petitioner Society filed his objection but the objection having been rejected and the Certificate Officer having passed orders, the petitioner's Society preferred an appeal. The appeal having been dismissed the present writ application has been filed and the alternative remedy available by way of revision has not been taken recourse to as in that event the petitioner would have been compelled to make the deposit before the revisional authority.
3. Though several grounds had been urged in this writ application in assailing the certificate proceeding, Mr. Padhi appearing for the petitioner did not raise those contentions at the time of hearing of the writ application. The only contention raised by Mr. Padhi is that a special procedure for realisation of the dues having been made under the provisions of the Orissa Co-operative Societies Act, the general procedure contained in Section 33-A of the Khadi Act will not apply and, therefore, initiation of the certificate proceeding is without jurisdiction, Mr. Das, the learned counsel appearing for the Khadi Board, on the other hand, contends that the provisions contained in Section 33-A of the Khadi Act having clearly indicated that the Board can without prejudice to any other mode of recovery issue a certificate for the amount due, to the Collector of the district who shall proceed to recover the amount in the same manner as an arrear of land revenue, it was open for the Khadi Board to take recourse to the provision contained in Section 33-A of the Khadi Act notwithstanding the special provisions contained in the Orissa Cooperative Societies Act and consequently there has been no infirmity in the initiation of a certificate proceeding under the provisions of the Orissa Public Demands Recovery Act.
4. The rival contention requires a careful examination of the provisions contained in the two Acts referred to earlier and an interpretation as to which provisions or which Act would apply for recovery of the dues in question.
For better appreciation of the point in issue, it would be appropriate to extract the two provisions of the two Acts. Section 33-A of the Orissa Khadi and Village Industries Board Act, 1954 is extracted hereinbelow in extenso:--
"33-A. Recovery of dues. Where any loan, advance or assistance granted by the Board to any institution or person is not repaid before the date specified therefor, the Board may, without prejudice to any other mode of recovery, issue a certificate for the amount due, to the Collector of the district who shall proceed to recover the amount in the same manner as an arrear of land revenue."
Section 108(1) of the Orissa Co-operative Societies Act is quoted hereinbelow in extenso:--
"108(1). All sums due from a society to Government or Orissa Khadi and Village Industries Board established under the Orissa Khadi and Village Industries Act, 3 of 1956, including any cost awarded under any provision of this Act may, on an order issued by the Registrar in this behalf, be recovered in the same manner as is provided under Sub-section (1) of Section 103."
It is to be noticed that the Orissa Co-operative Societies Act is a later Act than the Orissa Khadi and Village Industries Board Act, 1955. Section 33-A of the Khadi Act is a general provision indicating the procedure for recovery of dues by the Khadi Board when any loan, advance or assistance granted by the Board to any institution or person is not repaid before the date specified therefor. Provision of Section 108(1) of the Orissa Cooperative Societies Act, on the other hand, provides procedure for recovery of all sums due from a society to Orissa Khadi and Village Industries Board. According to the said provision, the dues from a society could be recovered in the same manner as is provided in Sub-section (1) of Section 103 of the Orissa Co-operative Societies Act. Under Section 103(1) of the Co-operative Societies Act an order made by the Registrar of the Co-operative Societies under Sub-section (1) of Section 108 if not carried out, then the said Registrar is entitled to sign a certificate and on such signing it would be deemed to be a decree of the Civil Court and would be executed in the same manner as a decree of such Court or it can be executed according to the law in force for recovery of arrears of land revenue. Proviso to the said sub-section further indicates that an application for recovery of sums due to a Society has to be made to the Collector and it shall be accompanied by a certificate signed by the Registrar whereafter the provisions of the Orissa Public Demands Recovery Act would apply. Thus under Section 108(1) of the Orissa Co-operative Societies Act, the dues of a Co-operative Society payable to the Khadi and Village Industries Board can be recovered only after the order is issued by the Registrar in that behalf and on such an order being issued by the Registrar, the amount can be recovered in the same manner as is provided under Sub-section (1) of Section 103 of the Orissa Co-operative Societies Act, Undoubtedly, therefore, the provisions contained in Section 108(1) of the Orissa Co-operative Societies Act is a special provision for realisation of dues from a Co-operative Society to the Orissa Khadi and Village Industries Board whereas Section 33-A of the Orissa Khadi and Village Industries Board Act is a general provision for the recovery of the dues in respect of any loan, advance or assistance granted by the Khadi Board to any institution or person. Under the special provision in the Co-operative Societies Act, an order of the Registrar is necessary whereas under the general provision under the Khadi Act, the Board itself can issue a certificate for the amount whereafter the Collector of the district would proceed to recover the amount in the same manner as an arrear of land revenue. In the aforesaid background, it has now to be considered whether the special provision contained in the Co-operative Societies Act would be the provision for recovery of dues against a Co-operative Society or a Khadi Board can pursue the remedies available under Section 33-A of the Khadi Act.
5. It is known principle of construction that when a special statute provides for a special procedure for recovery of dues, then that procedure must be adopted and to that extent any general procedure provided under any other statute for recovery of such dues cannot be held to be applicable. In other words, for recovery of dues of the Khadi Board against a Co-operative Society the procedure provided for in the Orissa Cooperative Societies Act must be followed and not the general procedure provided under the Orissa Khadi and Village Industries Board Act. That apart, the Co-operative Societies Act being a later Act and specific provisions having been made in the said later Act for recovery of dues of the Khadi Board against a Co-operative Society, it must be assumed that the legislature had in their view the general provisions contained in Section 33-A of the Orissa Khadi and Village Industries Board Act and yet a special provision was made in the Orissa Co-operative Societies Act for recovery of the dues in question. In that view of the matter, the general provision contained in Section 33-A of the Orissa Khadi and Village Industries Board Act cannot be held to be applicable in respect of the dues of the Khadi Board against a Co-operative Society and for realisation of such dues the procedure provided in Section 108(1) of the Orissa Cooperative Societies Act has to be followed. Mr. Das, the learned counsel for the Khadi Board relies upon the expression "without prejudice to any other mode of recovery" contained in Section 33-A of the Khadi Board Act and contends that in view of the aforesaid provision, Section 33-A must be held to override Section 108(1) of the Orissa Co-operative Societies Act. We are unable to accept this contention of the learned counsel for the Board. Further, the expression "without prejudice to any other mode of recovery" would obviously refer to the mode of recovery of a dues under the common law and would not exclude the special mode provided for in Section 108(1) of the Orissa Co-operative Societies Act in respect of the dues of the Khadi Board against a Co-operative Society. The only harmonious construction that is possible in respect of the two provisions is that Section 33-A of the Orissa Khadi and Village Industries Board Act would govern all cases of loan advanced or assistance granted by the Board to any institution or person other than a Co-operative Society and Section 108(1) of the Orissa Co-operative Societies Act would govern in respect of sums due from a society to the Village Industries Board established under the Khadi and Village Industries Board Act. In the aforesaid premises, the impugned certificate proceeding must be held to be without jurisdiction as the same has not been initiated in accordance with Section 108(1) of the Orissa Co-operative Societies Act and, on the other hand, it has been initiated in accordance with Section 33-A of the Orissa Khadi and Village Industries Board Act.
6. We would accordingly quash the orders under Annexures 7 and 13 and we observe that it would be open for the Khadi and Village Industries Board to take such action as provided in Section 108(1) of the Orissa Co-operative Societies Act for realising the dues if the same has not been realised in the meantime. This writ application is accordingly allowed. There would be no order as to costs.
D.M. Patnaik, J.
7. I agree.