Punjab-Haryana High Court
Gurnam Singh vs State Of Punjab And Ors. on 12 March, 2004
Equivalent citations: (2004)137PLR317
Author: Surya Kant
Bench: Surya Kant
JUDGMENT Surya Kant, J.
1. This writ petition has been directed by the petitioner for seeking a writ in the nature of certiorari for quashing the order-cum-notice dated 7.8.1985 (Annexure P1) whereby his land measuring 59 kanals 10 marlas was ordered to be attached under Section 63(b) of the Punjab Cooperative Societies Act, 1961 due to alleged non payment of loan amounting to Rs. 6600/- recoverable from the petitioner in terms of an award dated 26.5.75 and 6.4.1976.
2. The facts, as stated by the petitioner, are that he was elected Sarpanch of Gram Panchayat Jaial for three consecutive terms and is a prominent political worker of his area; that the impugned order dated 7.8.1985 had been issued by the Deputy Director, Cooperative Societies, Bhatinda attaching his land measuring 59 kanals 10 marlas with an attempt to declare him defaulter; he apprehends that arrest of warrant had also been issued; that the petitioner had repaid the loan long time back and nothing was due from him; that the arbitration proceedings appear to have been conducted at his back inasmuch as no notice of the proceedings was ever issued or served upon him; the petitioner alleges that the award is nonest and even after the alleged award was given, no notice of any kind was served upon him; that the petitioner is a highly respectable person of the area and the impugned proceedings have been initiated to defame him; that the impugned order dated 7.8.1985 (Annexure P1) has been issued in contravention of the statutory of Section 67-A of the Act, inasmuch as the alleged notice under Section 67-A(2) of the Act was issued on August 1, 1985 and on the following day a report was obtained as if the petitioner had refused to accept the summons and thereafter an order under Sub-section (3) of the afore-mentioned provision was passed; that on the basis of the impugned order an undated warrant of arrest has been issued; that the petitioner never refused to accept the service of notice and was never approached to receive the same.
3. While issuing notice, the motion Bench vide its order dated August 22, 1985 stayed the arrest of the petitioner.
4. Upon notice, two separate written statements have been filed, namely, on behalf of Respondents No. 1 to 3 and the other by respondent No. 5 the society.
5. According to the respondents, the petitioner took mid-term loan of Rs. 3250/- on 14.9.1968 which was returnable after three years; thereafter he took another sum of Rs. 4,000/- on 24.11.1969 and executed pronotes on both the occasions which are in the custody and possession of the Society; that at the time when the petitioner availed of these loan facilities, he himself was working as the Cashier of the Respondent-Society; the petitioner had paid only Rs. 650/- on 30.10.1969 towards the return of mid-term loan of Rs. 3250/- thereafter nothing was paid by him and he is liable to pay Rs. 6650/- along with interest for which arbitration proceedings were initiated against him; that pursuant to the arbitration proceedings, two awards dated 26.5.1975 and 6.4.1976 were given against the petitioner and upon demand notice in pursuance to these awards, the petitioner refused to accept the notice which was affixed at the door of his house; that the proceedings have been initiated against the petitioner under Section 63(b) of the Act of the execution of the two awards which have attained finality and not under Section 67-A of the Act, as alleged by him.
6. I have heard Shri Kapil Sharma, learned counsel for the petitioner and Mrs. Rupinder Wasu learned Additional Advocate General, Punjab representating Respondents No. 1 to 4.
7. From the averments made in the two written statements which have not been controverted by the petitioner, it emerges that certain mid-term loans were taken by him from respondent No. 5 Cooperative Society and due to non payment thereof, the awards for recovery of Rs. 6600/- were passed against him on 26.5.1975 and 6.4.1976. It seems that the afore-mentioned awards were not challenged by the petitioner and the same at tained finality. According to the Respondents, they have initiated execution proceedings to recover the amount due from the petitioner under Section 63(b) of the Act but the petitioner claims that the impugned order of attachment could be passed against him only under Section 67-A of the Act and that Sub-section (2) of Section 67-A of the Act having not been complied with, the proceedings are vitiated in law. With a view to appreciate the rival contentions, Sections 63 and 67-A are reproduced below;-
"63. Execution of certain decisions, awards and orders.- Every decision award or order duly passed under Section 54, 55, 62, 68 or 69 shall, if not carried out;-
a) on a certificate signed by the Registrar or any person authorised by him in this behalf, be deemed to be a decree of a civil Court and shall be executed in the same manner as decree of such Court, or
b) be executed by the Registrar or any other person subordinate to him, empowered by the Registrar in this behalf by the attachment and sale or by sale without attachment of any property of the person or of the co-operative society against whom the order, decision or award has been obtained or passed; or
c) be executed according to the law for the time being in force for the recovery of arrears of land revenue;
Provided that an application for the recovery of any sum in the last aforesaid manner shall be made to the Collector and shall be accompanied by a certificate signed by the Registrar or any person authorised by him in this behalf.
67-A Recovery of certain loans as arrears of land revenue.- (1) Notwithstanding anything contained in Section 55 or Section 56 or Section 63, a cooperative society may apply to the Registrar for the recovery of arrears of any loan advanced by it to any members together with interest accrued thereon and when such an application is made, it shall be accompanied by an up to date statement of accounts in respect of such loan and interest thereon.
2) The Registrar may, on receipt of an application under Sub-section (1) or suo motu after making such enquiries as he deems fit and after affording the members concerned an opportunity of being heard, grand a certificate in the prescribed form for the recovery of the amount due from such member on account of loan and interest thereon.
3) Subject to the order, if any, that may be passed in appeal under Section 68, the certificate granted by the Registrar under Sub-section (2) shall be final and conclusive and the amount specified therein as due from the members on account of loan and interest thereon shall be recovered in the same manner as arrears of land revenue.
8. On a reading of Section 63, it emerges that if an award has been passed on reference of a dispute under Section 56 of the Act, it is executable like a decree of the civil Court provided that a certificate duly signed by the Registrar or any person authorised by him has been issued to this effect. However, a summary procedure for recovery of the dues from the members of the Society has been provided by the legislation by incorporating Section 62-A which empowers the Registrar for recovery of dues from members of the society on an application moved by the society along with statement of accounts in respect of such sums. Upon receipt of such an application the Registrar is required to make an inquiry and after affording the member an opportunity of being heard, he will grant a certificate for the recovery of the amount stated therein due as land arrears.
9. It would, thus, be seen that the issuance of recovery certificate duly signed by the Registrar or a person authorised by him is sine qua non for execution of an award under Section 63 of the Act or an order passed in summary proceedings under Section 67-A of the Act. In the present case, in para 9 of the Writ Petition, the petitioner has made a positive averment that after the alleged award no notice of the same was ever served upon him. The society in para 9 of its written statement has not disputed this averment, rather it has taken the stand that "no notice is required to be given after a rendering of the award". In my view, it is imperative for the Registrar, Cooperative Societies or any person authorised by him to issue notice to the debtor before the execution proceedings in the manner specified under Section 63(b) & (c) of the Act are initiated by attachment of land or warrants of arrest so as to effect recovery of loan amount like arrears of land revenue. A similar procedure is required to be followed by the Registrar or his nominee under Section 67-A(2) of the Act. Assuming that the execution proceedings in the present case have been initiated under Section 63 and not under Section 67-A, yet the Registrar, Cooperative Societies or his nominee ought to have issued a notice to the petitioner before his land could be attached or warrants of arrest issued. Further, keeping in view the peculiar facts and circumstances of this case and the fact that arrest of the petitioner was stayed by this Court on August 22, 1985, I am of the considered view that ends of justice would be met if the petitioner is given an opportunity by way of a notice to enable him to repay the loan amount.
10. For the reasons stated above, notice cum-order dated 7.8.1985 (Annexure P1) is quashed. The respondents are directed to issue a demand notice to the petitioner pursuant to the awards dated 26.5.1975 and 6.4.1976 for the payment of the arrears of the loan amount along with interest, if not paid already and if the petitioner fails to discharge his liability, then only to proceed for execution of the awards in accordance with Section 63(b) of the Act by taking action like attachment of his land or issuance of arrest warrants etc. With these observations, the writ petition is disposed of. No order as to costs.