Andhra HC (Pre-Telangana)
A. Vemanaidu vs Erracheruvupalle Primary ... on 21 June, 2002
Equivalent citations: 2002(4)ALD700, 2002(5)ALT407
ORDER V.V.S. Rao, J.
1. These four writ petitions were heard together and are being disposed of at the admission stage by this common order.
2. The petitioners in W.P. Nos. 11039, 11046 and 10859 of 2002 obtained loans from Erracheruvupalle Primary Agricultural Co-operative Society (Erracheruvupalle PACS), Puthalapattu Mandai, Chittoor District. The petitioners in WP No. 11047 of 2002 obtained agricultural loans from Kondaraju Kalva Primary Agricultural Cooperative Society, (Kondaraju Kalva PACS) Kondaraju Kalva, Tavanampally Mandai, Chittoor District. All the loans are agricultural loans ranging from Rs. 10,000/- to Rs. 20,000/-payable in quarterly instalments for a period of five years. According to the petitioners they have paid some amounts and still they are due some amounts to the said Societies. On 6-5-2002 the second respondent issued a public auction notice proposing to bring the immovable properties of the petitioners for sale in the public auction in execution of a recovery certificate issued by a competent authority under Section 71(1) of the A.P. Co-operative Societies Act, 1964 (for short, the Act). The petitioners, therefore, filed the present writ petitions seeking a writ of mandamus declaring the action of the respondents in bringing the properties of the petitioners for sale on 24.6.2002 in the case of Erracheruvupalle PACS, and on 26.2.2002 in the case of Kondaraju Kalva PACS).
3. The learned Counsel for the petitioners Sri T.C. Krishnan raised three contentions regarding merits of the case. First, he would submit that the recovery certificate was obtained by the PACS under Section 71(1) of the Act without any notice to the loanees. Secondly he would submit that even after obtaining recovery certificate PACS and Sub-Registrar have to give sufficient time and put the petitioners on notice for payment of amount as determined by the Registrar under Section 71(1) of the Act and any execution of recovery certificate without prior notice would violate principles of natural justice. Thirdly he would submit that the Government of Andhra Pradesh vide G.O.Ms. No. 38 dated 29-1-2002 published a notification in the A.P. Gazette (Part-1) Extraordinary, dated 29-1-2002 declaring as many as 993 Mandais in all the Districts, except Hyderabad District as drought areas and also requested all the District Collectors to take necessary action for identifying the specific areas to enable farmers of those areas to avail credit facilities from banks. He would urge that as Puthalapattu and Tavanampally Mandais having been included in the notification declaring the said Mandais as drought areas, the respondents are not authorised to take any steps for recovery of the loans by allowing execution. He would lastly submit that the loan was repayable within five years from the date of the loan and even before the expiry of five years the first respondent is not competent to obtain any recovery certificate much less take out execution proceedings.
4. This Court having regard to the provisions of Section 76 of the Act specifically posed a question to the learned Counsel for the petitioners whether or not efficacious and effective alternative remedy is available to the petitioners by way of appeal before the jurisdictional Co-operative Tribunal constituted under Section 75 of the Act. The learned Counsel refers to Sections 70, 76, 101 and 104 of the Act as well as Rule 52 of the A.P. Co-operative Societies Rules, 1964 (for short, the Rules) and would submit that when execution proceedings are initiated for recovery of the loans pursuant to order passed under Section 62 of the Act or execution proceedings are taken up for recovery of loans pursuant to recovery certificate under Section 71(1) of the Act, appeal would not lie under Section 76 of the Act. This submission is vehemently refuted by the learned Counsel for respondents 1 and 3 Sri P. Srinivas.
5. Any financing bank or PACS which sanctioned loan can recover the loan by approaching the Registrar of Co-operative Societies under Section 62 of the Act. Notwithstanding such mode of recovery, Sections 71(1) and 101 of the Act also provide that a Primary Agricultural Co-operative Society can make application to the Registrar to issue a certificate for recovery of the loan amount. The procedure for recovery of debts under Sections 71 and 101 of the Act is a special procedure and by reason of the non obstante clause in both these provisions it would prevail on other remedies. Section 70 of the Act read with Rule 52 of the Rues provides for power of Registrar to recover the amount by attachment and sale of property and also power of the Registrar to recover the same by execution of orders. Sub-section (2) of Section 70 of the Act is relevant for the purpose of this case and reads as under:
70(2). Every order or decision made under Section 60, Section 71, Section 76, Section 77 or Section 78 for the recovery of any amount may be executed in following manner-
(a) by the civil Court having local jurisdiction on a certificate signed by the Registrar or any person authorised by him in this behalf as if the order or decision were a decree of that Court: or
(b) by the Collector, or an application made to him within twelve years from the date fixed for payment in the order or decision and if no such date fixed from the date of the order or decision, along with a certificate signed by the Registrar or by any person authorised by him in this behalf as if the amount due under the order or decision were an arrear of land revenue; or
(c) by the Registrar or any other person authorised by him in this behalf, in the manner provided under Sub-section (1).
6. Rule 52 of the Rules contains detailed procedure to be followed in execution of decrees, decisions or orders including orders passed under Section 71(1) as well as Section 101 of the Act.
7. A reading of Sub-section (2) of Section 70 as well as Section 52 of the Act, it becomes clear that the amount covered by a certificate for recovery of the debt granted by the Registrar of Co-operative Societies under Section 71(1) of the Act can be executed in accordance with Sub-section (2) of Section 70 of the Act duly following the procedure under Rule 52 of the Rules. The Act is a self-contained Code.
8. It provides for constitution of Cooperative Tribunal and Section 76 of the Act provides that any person aggrieved by any decision passed or order made under various provisions of the Act, inter alia, may file appeal to the Tribunal. An order for execution of a certificate of recovery under Section 71 of the Act and auction notice consequent thereto can only be under Section 70(2) of the Act read with Sub-rule (11) of Rule 52 of the Rules. Therefore, the impugned action is clearly appealable under Section 76 of the Act. A reference may be made to Section 76(1) of the Act which reads as under.
76(1). Any person or society aggrieved by any decision passed or order made under Section 6, Section 9-A, Section 9-B, Section 9-C, Section 12-A, Section 13, Section 15-A, Section 16, Section 17, Section 19, Section 21, Section 21-A, Section 21-AA, Section 23, Sub-section (3) of Section 32, Section 34. Section 34-A, Section 60, Section 62, Section 64, Section 66, Section 70, Section 71, Section 73 and Section 117 may appeal to the Tribunal:
Provided that nothing in this Sub-section shall apply to any order of withdrawal or transfer of a dispute under Sub-section (3) of Section 62.
9. It is well-settled that ordinarily when there is effective alternative remedy provided by statute especially by a Statutory Tribunal duly constituted under the Act, this Court ordinarily does not entertain the writ petition at the initial stages. This rule, is no doubt, has certain exceptions like, blatant violation of law and rules, violation of principles of natural justice and in cases where the very provision of Statute itself is questioned. (See Whirlpool Corporation v. Registrar of Trade Marks Mumbai, . In the case on hand, none of these things exist. In my considered opinion, there are disputed questions of fact, which require evidence to be adduced by both the parties. The learned Counsel for the petitioners, however, lastly submits that auction in one case is scheduled to be held on 22-6-2002 and in another case on 24-6-2002. Pending the appeal before the Co-operative Tribunal that may be filed by the petitioners the Court may stay the auction. Having regard to the provisions of Section 76(6) of the Act read with Rule 11 of the Co-operative Tribunal Appeal Provision Rules, 1994 the request of the petitioners cannot be accepted. There are adequate powers conferred. It is well-settled that when an enactment creates a Statutory Tribunal and entrusts certain matters to be agitated by way of appeal at the first instance and also confers adequate incidental and supplemental powers to stay and suspend the orders, it is not for this Court to interdict the process of the law, in accordance to which, the properties of the petitioners are brought to sale. In this connection, a reference may be made to Carl Still G.M.B.H. v. State of Bihar, , wherein their Lordships laid down as under.
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 law, 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.
10. In the result, having regard to Section 76 of the Act which provides for appeal, any decision or order under Section 70 of the Act, as there is effective alternative remedy available to the petitioners, these writ petitions cannot be entertained. The petitioners are at liberty to approach the A.P. Co-operative Tribunal, within a period of one week from the date of receipt of a copy of this order. As and when such appeal is filed it shall be open to the learned Tribunal to consider the appeal as well as the interlocutory applications if any under Sub-section (6) of Section 76 of the Act on their own merits without in any manner being influence by any of the observations made hereinabove.
11. The writ petitions, subject to above observations, are dismissed.