(Per:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA) By this application under Article 226 of the Constitution of India, the writ-petitioners, who have been served with a notice under section 159 of the Gujarat Co-Operative Societies Act, 1961 [the Act, for short, hereafter] for recovery of dues pursuant to an award passed by the Board of Nominee, have challenged the provisions of section 159 of the Act as ultra vires Article 14 of the Constitution of India. According to the writ-petitioners, the said provision is arbitrary, harsh, unreasonable and oppressive compared to other mode of recovery as designed by the legislature in the Act itself.
The case made out by the petitioners in the application may be summed up thus:
The petitioners have suffered a judgment and award of the Board of Nominee, Rajkot Division, Rajkot in Arbitration Case No. 173 of 2000 in the year 2003 for Rs.7,61,308-75.
Being armed with the judgment and order of the Board of Nominees, the respondent No.2 has now proceeded to recover the amount in the light of section 159 of the Act in stead of resorting to section 103 of the Act. Section 103 of the Act delineates the mode of recovery for orders passed by the competent authority under various sections of the Act and the said section is complete in itself. By virtue of the same, either the local Civil Court or the Land Revenue Authorities are given the powers to recover the amount payable. On the other hand, Section 159 of the Act is in complete contrast and provides for mode of recovery by the Registrar, which, according to the scheme and structure of the Act, is the adjudicating authority and not the executing authority. The executing authority is always different and distinct from the adjudicating authority and when the Civil Courts and Land Revenue authorities are entrusted with the task of recovery under section 103 of the Act, there is no reason and logic to assign the same duty to the Registrar and create plural authorities. Thus, the said section should be declared ultra vires Article 14 of the Constitution of India being arbitrary, unreasonable and harsh.
In order to appreciate the question involved in this petition, it will be apposite to refer to the provisions of sections 103 and 159 of the Act, which are quoted below:
"103. Money how recovered:
Every order passed by the Registrar or a person authorized by him under section 93, or by the Registrar, his nominee or board of nominee under section 100 or 101, every order passed in appeal under section 102, every order passed by a liquidator under section 110, every order passed by the State Government in appeal against orders passed under section 110, and every order passed in revision under section 155, shall, if not carried out,-
[a]. on a certificate signed by the Registrar or a Liquidator be deemed to be a decree of a Civil Court, as defined in clause (2) of section 2 of the Code of Civil Procedure, 1908 and shall be executed in the same manner as a decree of such Court, or [b]. be executed according to the provisions of the Land Revenue Coded and the rules thereunder for the time being in force for the recovery of arrears of land revenue;
Provided that, any application for the recovery in such manner of any such sum shall be made to the Collector, and shall be accompanied by a certificate signed by the Registrar, or by any Assistant Registrar, such application shall be made within twelve years from the date fixed in the order and if no such date is fixed, from the date of the order."
"159. Registrar's power to recover certain sums by attachment and sale of property.
[1]. The Registrar or any officer subordinate to him and empowered by him in this behalf may, subject to such rules as may be made by the State Government but without prejudice to any other mode of recovery provided by or under this Act, recover-
[a]. any amount due under a decree or order of a Civil Court obtained by a society.
[b]. any amount due under a decision, award or order of the Registrar, his nominee or the board of nominees or Liquidator or Tribunal, [c]. any sum award by way of costs under this Act, [d]. any sum ordered to be paid under this Act as a contribution to the assets of the society, together with interest, if any, due on such amount of sum and the costs of recovering the same by the attachment and sale or by sale without attachment of the property of the person against whom such decree, decision award or order has been obtained or passed.
[2]. The Registrar or the officer empowered by him shall be deemed when exercising the powers under sub-section (1) or when passing any order on any application made to him for such recovery, to be a Civil Court for this purpose of article 182 in the First Schedule to the Indian Limitation Act, 1908 [IX of 1908].
After hearing Mr. Shah, the learned advocate appearing for the petitioners, and after going through the above as well as the other provisions of the Act, we are unable to brand section 159 of the Act as arbitrary so as to declare the same ultra vires Article 14 of the Constitution of India for the following reasons:
A comparison of the above two sections will make it amply clear that by taking the aid of section 103 of the Act, the orders passed by the Registrar or any other authorities mentioned therein are executed either as a decree of the civil court on the basis of the certificate signed by the Registrar or a Liquidator or are enforced in accordance with the provisions of the Land Revenue Code and the rules framed there under. On the other hand, in section 159 of the Act, which is included in Chapter XIV, the Registrar has been given special power by attachment and sale of property only in four circumstances mentioned in sub-section (1) of that section.
Therefore, only in the four types of circumstances mentioned in sub-section (1) of section 159, the Registrar or an officer empowered by him is authorized to invoke section 159 of the Act, and not otherwise. There being specific circumstances indicated by the legislature where a particular mode can be invoked for execution, whereas in other circumstances than the above ones, there is different mode of recovery, in our opinion, the division of modes cannot be said to be arbitrary for vagueness nor is it vitiated by any other vices of unreasonableness. Thus, the legislature was conscious that only in those four types of cases the Registrar or the officers empowered by him would be authorized to invoke the provisions of section 159 of the Act, and in all other cases of recovery, section 103 will have to be invoked. The provision of realization of dues by way of attachment and sale of the assets of the judgment debtor is a known method and there cannot be any apprehension of abuse in such a mode of recovery.
We, thus, find no substance in the contention of Mr. Shah that the provision of section 159 authorizing the Registrar to attach or sell the property is unreasonable. Even by taking the aid of section 103 of the Act, a decree holder can attach and sell the property of the judgment-debtor. Therefore, there is nothing extraordinary in the said mode, and the only difference is that instead of the Civil Court, the Registrar or any authorized officer subordinate to him will be entitled to invoke the said provision.
Moreover, we find that section 103 of the Act not only provides for execution of an award or decree through a Civil Court, but also authorizes execution under the provisions of the Land Revenue Code, as if, the same is one for recovery of arrears of land revenue. Such a provision is equally stringent, if not more rigorous than the one provided in section 159 of the Act.
Lastly, we also do not find any substance in the contention of Mr. Shah that in all the statutes, the adjudicating authority should necessarily be different from the executing authority. If we take into consideration the provisions of the Code of Civil Procedure itself, it will appear that the Court passing a decree itself is the executing court. Therefore, when the legislature has empowered a particular authority to adjudicate a dispute, there is nothing abnormal in investing the power of execution to the selfsame authority. Moreover, the post of Registrar is quite a high and the responsible post under the provisions of the Act and thus, for the investiture of the power of execution in favour of the Registrar or any subordinate officer empowered by him, none of the rights conferred upon the judgment-debtor under the Act is infringed.
On consideration of the entire materials on record, we, thus, find that there is no substance in this application and hence, the same is dismissed summarily. In the facts and circumstances, there will be, however, no order as to costs.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew [J.B.PARDIWALA. J.] Top