Hon'ble Shyam Shankar Tiwari,J.
(Per Hon'ble Ashok Bhushan, J.) By this writ petition, the petitioner has prayed for quashing the citation dated 8.11.2010 for recovery of amount of Rs. 1,31,875/- as well as recovery certificate dated 15.10.2007 in so far as it relates to the petitioner (Annexure-6 to the writ petition). Short counter affidavit and short supplementary counter affidavit have been filed by the respondent no. 1 to which rejoinder affidavit has also been filed by the petitioner.
Brief facts, which emerged from pleadings of the parties are; the petitioner was sanctioned a loan of Rs. 73,000/- on 20.1.2001 by respondent no. 1 for purchase of tempo. The petitioner deposited an amount of Rs. 11,925/- on 29.10.2001 and Rs. 6,166/- on 7.6.2002 towards repayment of loan. No further amount was paid by the petitioner hence, the respondent no. 1 made application to the District Assistant Registrar, Cooperative Societies, Allahabad for issuance of certificate under section 95-A (1) of U.P. Cooperative Societies Act, 1965 for recovery of an amount of Rs. 1,31,875/- from the petitioner. District Assistant Registrar issued recovery certificate dated 15.10.2007, which certificate contained the name of the petitioner also. On the basis of the recovery certificate issued by the District Assistant Registrar, a citation dated 8.11.2010 has been issued by the Tahsildar for recovery of amount of Rs. 1,31,875/-. The petitioner by this writ petition has challenged the aforesaid recovery certificate and citation.
Learned Counsel for the petitioner in support of the writ petition, raised following submissions.
i.Sections 15 and 16 of the U.P. Sahakari Gramin Vikas Bank Act, 1964 and Rule 45 of U.P. Sahakari Gramin Vikas Bank Rules, 1971 provides a procedure for recovery of loan, which procedure having not been followed for recovery, the action of the respondents in issuing recovery certificate under section 95-A is illegal. When procedure has been prescribed under the Act and Rules, any other mode or manner of recovery is prohibited. Learned Counsel for the petitioner in support of his above submission, placed reliance on judgments of this Court reported in 1965 R.D. 327, Wakf Alu-Allah Kayam Karida- Ahmad Ullah Khan Sahab, Waqf Baratu through Riaz Uddin Tailar Vs. Balak Singh, 1968 R.D. 187, Brij Bahadur Lal Vs. Dy. Director of Consolidation, U.P. & others, 1968 R.D. 57, Abdul Wahid Khan and others Vs. Dy. Director of Consolidation, Jaunpur, and others, 1969 R.D. 79 Durga Prasad Vs. Board of Revenue U.P. and others, Full Bench judgment of this Court in Smt. Sharda Devi Vs. State of U.P., 2001 Allahabad Civil Journal 1167. The judgment of the apex Court reported in 1984 AIR (S.C.) 718 A.R. Antulay Vs. Ramdas Sriniwas Nayak.
ii.Section 95-A of the U.P. Cooperative Societies Act, 1965 is not applicable with regard to loan sanctioned by U.P. Sahakari Gramin Vikas Bank since the bank is neither an agricultural credit society nor a society referred to in section 34 of the U.P. Cooperative Societies Act, 1965.
Sri K.N. Misra, learned counsel for the respondents refuting the submissions of learned counsel for the petitioner, submits that recovery by issuance of certificate under section 95-A of the U.P. Cooperative Societies Act, 1965 is fully permissible for respondent no. 1. He submits that the said issue has already been decided by Division Bench of this Court in writ petition No. 66154 of 2010 Sukh Lal Vs. State of U.P. and others decided on 5.1.2011, where similar arguments have been repelled. He further submits that the respondent no. 1 is a society which is governed by section 34 of the U.P. Cooperative Societies Act, 1965 and recovery by issuing a certificate under section 95-A is fully permissible. He submits that execution of certificate under section 92 is permissible for which limitation is 12 years. He submits that petitioner has not made any repayment of loan after payment of two amounts of Rs. 11,925 and 6,166/- in the year 2001 and 2002. He further submits that the land of the petitioner being less than 3.125 acre, it cannot be sold due to the Government Order dated 27.9.2007 which prohibits auction of land of less than 3.125 acre. He submits that the land of the petitioner cannot be sold hence, the Bank has no option except to proceed under section 95-A the 1965 Act.
We have considered the submissions of learned counsel for the parties and hae perused the record.
The principal submission which has been pressed by Sri Awadhesh Pratap Singh, learned counsel for the petitioner is that 1964 Act and the Rules framed thereunder provides a specific procedure for recovery hence, the recovery by issuance of certificate under section 95-A of the U.P. Cooperative Societies Act, 1965, is not permissible. He submits that when a statute provides a manner of doing a particular thing, the said thing can be done in the above manner only and doing of thing by another manner is prohibited. 1964 Act provides procedure for realization of its loan. In the present case, stand taken by the respondents is that recovery had been initiated in accordance with Section 95-A of the U.P. Cooperative Societies Act,1965 which procedure is permissible, as the respondent no. 1 is a registered cooperative society within the meaning of U.P. Cooperative Societies Act, 1965. The above issue which has been raised in the writ petition, was considered by a Division Bench of this Court in the case of Sukh Lal (supra). It is relevant to extract relevant discussions in this regard. The Division Bench in Sukh Lal's case repelled the above submission after considering the provisions of 1964 Act and U.P. Cooperative Societies Act, 1965. Following was laid down by the Division Bench in the aforesaid case:
"The U.P. Sahkari Gram Vikas Banks Act, 1964 has been enacted to facilitate the working of Sahkari Gram Vikas Banks in the State of Uttar Pradesh. Section 2(j) provides that Uttar Pradeshs Sahkari Gram Vikas Bank means a cooperative society registered under the Cooperative Societies Act. Section 2(j) is quoted below:-
"2(j). Uttar Pradesh Sahkari Gram Vikas Banks means a cooperative society registered under the Co-operative Societies Act for the time being in force in Uttar Pradesh with its area of operation covering the whole of Uttar Pradesh and carrying on the business as a Gram Vikas Bank and facilitating the operation of its members;"
From the materials brought on the record including the mortgage deed (Annexure-1 to the writ petition), it is clear that the Uttar Pradesh Sahkari Gram Vikas Bank Limited is a registered society under the Cooperative Societies Act, 1912. According to Section 131 of the 1965 Act any cooperative society existing on the date of coming into force of the 1965 Act and registered under the Cooperative Societies Act, 1912 shall be deemed to be registered under the 1965 Act. Thus the U.P. Sahkari Gram Vikas Bank is a registered cooperative society within the meaning of the 1965 Act. Section 15 of the 1964 Act provides procedure for distraint and sale by the Gram Vikas Bank. Sections 15(1) and 16(1) of the 1964 Act, which are relevant for the purpose, are quoted below:-
"15(1). Distraint when to be made.- (1) If any instalment payable under a mortgage executed in favour of a Gram Vikas Bank or any part of such instalment remains unpaid for more than one month from the date on which it falls due, the managing committee may, in addition to any other remedy available to the said bank, apply to the Registrar for the recovery of such instalment or part thereof by distraint and sale of the produce of the mortgaged land including the standing crops thereon."
(2) ............
(3) ............
16. Power of sale when to be exercised -(1) Notwithstanding anything contained in the Transfer of Property Act, 1882, where a power of sale without the intervention of court is expressly conferred on a Gram Vikas Bank by a declaration of charge made or mortgage deed executed before or after the commencement of this Act, the managing committee of such bank or any person authorised by such committee in this behalf shall, in case of default in payment of the money due under the mortgage or charged or any part thereof, have power, in addition to any other remedy available to the said bank, to bring the property subject to any mortgage or charge to sale without the intervention of the court.
(2) ...........
(3) ...........
(4) ...........
(5) ..........."
The aforesaid of Sections 15 and 16 of the 1964 Act clearly indicate that the power given in the aforesaid sub-sections are in addition to any other remedy available to the said Bank. Thus the procedure laid down in the 1964 Act does not prohibit adopting of any other process which is available to the Gram Vikas Bank under any law. As noticed above, the Gram Vikas Bank being a registered cooperative society within the meaning of the 1965 Act, the provisions of Section 95-A of the 1965 Act are fully applicable.
Rule 45 of the 1971 Rules on which much reliance has been placed by counsel for the petitioners, provides as under:-
"45. Recovery of arrears of loans secured on furnishing sureties - (1) The Registrar may on an application made in this behalf for the recovery of arrears of any loan or any instalment thereof on furnishing a statement a accounts in respect of such loans and after making such enquiries, if any, as he thinks fit, issue a certificate for recovery of the amount due.
(2) A certificate issued by the Registrar under sub-rule (1) shall be final and conclusive proof of the dues which shall be recoverable as arrear of land revenue from the sureties and the borrower jointly and severally."
Rule 45 of the 1971 Rules has been subsequently added in the 1964 Act. By notification dated 22nd January, 1990 Chapter 5-A was added in the 1965 Act. Rule 45 is akin to Section 95-A of the 1965 Act. Section 95-A of the 1965 Act is quoted below:-
"95-A. Special provision for recovery of certain dues of agricultural society. (1) The Registrar may, on an application made by society referred to in Section 34 or an agricultural credit society for the recovery of arrears of any loan advanced by it or any instalment thereof to any member and on its furnishing a statement of accounts in respect of such loan and after making such inquiries, if any, as he thinks fit, issue a certificate for recovery of the amounts due.
(2) A certificate issued by the Registrar under sub-section (1) shall be final and conclusive proof of the dues which shall be executable under Section 92."
Rule 45 of the 1971 Rules provides that Registrar on an application made for recovery of arrears of any loan may issue a certificate for recovery of the amount. The word "Registrar" is defined in Section 2(h) of the 1964 Act, which is to the following effect:-
"2(h). "Registrar" means the person appointed by the State Government to be Registrar of Cooperative Societies for the State of Uttar Pradesh under the provisions of the Cooperative Societies Act for the time being in force in Uttar Pradesh;"
Section 95-A of the 1965 Act also refers to "Registrar" and for "Registrar", the definition given in Section 2(r) of the 1965 Act is to be referred, which is to the following effect:-
"2(r). "Registrar" means the person for the time being appointed as Registrar of Cooperative Societies under sub-section (1) of Section 3 and includes any person appointed under sub-section (2) of that section when exercising all or any of the powers of the Registrar;"
From the above provisions, it is clear that the procedure for issuing certificate under Rule 45 of the 1971 Rules and the authority to issue the said certificate are the same as provided under Section 95-A of the 1965 Act. Thus the submission of learned counsel for the petitioners that recovery, which is under challenge, is against the 1964 Act and the 1971 rules cannot be accepted.
The respondent-Bank has come up with the specific plea that recovery has been initiated on the basis of certificate issued under Section 95-A of the 1965 Act and the said certificate has been filed as Annexure CA-2 to the counter affidavit filed by respondent No.4. Annexure CA-2 to the counter affidavit specifically refers to Section 95-A of the 1965 Act and the certificate has been issued by the District Assistant Registrar, Cooperative Societies, U.P. The respondent No.4 has brought on the record the notification dated 15th November, 1979 issued by the State Government in exercise of power of U.P. General Clauses Act, 1904 read with power of the State Government as referred to under Section 3(2) of the 1965 Act by which the District Assistant Registrar has been authorised to exercise the power under Section 95-A of the 1965 Act with regard to such branches of the Uttar Pradesh Sahkari Bhumi Vikas Bank Limited which are within its jurisdiction. Section 3 of the 1965 Act is quoted below:-
"3. Registrar. -(1) The State Government may appoint a person to be the Registrar of Cooperative Societies for the State.
(2) The State Government may, for the purpose of this Act, also appoint other persons to assist the Registrar and by general or special order confer on any such person all or any of the powers of the Registrar.
(3) Where any order has been made under sub-section (2) conferring on any person all or any of the powers of the Registrar under any provision of this Act, such order shall be deemed to confer on him all the powers under that provision as may be amended from time to time."
Thus the District Assistant Registrar is fully empowered to exercise the power of Registrar under Section 95-A of the 1965 Act and the recovery certificate dated 5th October, 2007 issued by the District Assistant Registrar is fully in consonance with the provisions of Section 95-A of the 1965 Act and the District Assistant Registrar for the purpose of Section 95-A of the 1965 Act is empowered to act as Registrar. Thus the submission of the petitioners' counsel that recovery proceedings initiated against the petitioners are in breach of the 1964 Act and the 1971 Rules is misconceived."
Learned Counsel for the petitioner in support of his submission that when a thing is required to be done in a statute in a particular maner, the same has to be done in the said manner, has placed reliance on large number of judgements as noted above. The Full Bench judgment of this Court in the case of Abdul Wahid Khan (supra), while considering the principle of statutory interpretation, held that the words used by Legislature to be construed in their natural meaning when text is explicit. There cannot be any dispute to the principles of interpretation as laid down by the apex Court in the said judgment. The same principle of statutory interpretation were reiterated by this Court in the case of Durga Prasad (supra). In A.R. Antulay's case (supra), following was laid down in paragraph 22:
"Once the contention on behalf of the appellant that investigation under Sec. 5A is a condition precedent to the initiation of proceedings before a special Judge and therefore cognizance of an offence cannot be taken except upon a police report, does not commend to us and has no foundation in law, it is unnecessary to refer to the long line of decisions commencing from Taylor v Taylor, (1) Nazir Ahamad v. King Emperor (2) and ending with Chettiam Veettil Ahmad and Anr. v. Taluk Land Board and Ors., (3) laying down hitherto uncontroverted legal principle that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all Other methods of performance are necessarily forbidden."
There cannot be any dispute to the proposition as laid down by the apex Court in the above mentioned case, following the earlier judgment of the Privi Council and the judgments of the apex Court as noticed therein. However, in the present case, although procedure for recovery has been laid down in 1964 Act and Rules 1971, but according to the express provisions of Sections 15 and 16 other modes of recovery are not prohibited. When Sections 15 and 16 itself contemplated that remedy as provided under sections 15 and 16 are "....in addition to any other remedy available to the said Bank..." Thus, according to Sections 15 and 16 any other remedy available to the Bank is also contemplated by statutory provision. Thus, the provisions of Sections 15 and 16 itself contemplated that recovery can also be effected by any other manner available to the Bank and any other mode of recovery available to the Bank is not prohibited rather is permitted by statutory provision. As noticed above, the respondent no. 1 being a registered cooperative society within the meaning of Section 131 of the U.P. Cooperative Societies Act, 1965, the mode of recovery under section 95A was clearly available to the respondent no. 1. Thus, the principles laid down by the apex Court in A.R. Antulay's case (supra) is not attracted and the recovery by mode as prescribed under section 95-A, is not prohibited rather is permitted by provisions of 1964 Act.
The second submission which has been pressed by learned counsel for the petitioner is that Section 95-A is not attracted to the respondent no. 1 since it is neither an agricultural credit society nor a society referred to under section 34 of 1965 Act. It is true that the respondent No. 1 is not an agricultural credit society thus, it has to be looked into as to whether the respondent no. 1 is covered by society as contemplated under section 34. Section 34 of the U.P. Cooperative Societies Act, 1965 is as follows:
" Section 34 - Nominee of the Government on the committee of management.-(1) Where the State Government has-
(a) subscribed directly to the share capital of a co-operative society under Chapter VI: or
(b) assisted indirectly in the formation or augmentation of the share capital of a co-operative society as provided in Chapter VI; or
(c) given loans or made advances to a co-operative society or guaranteed the repayment of principal and payment of interest on debentures issued by a co-operative society or guaranteed the repayment of principal and payment of interest on loans or advances to a co-operative society.
the State Government shall have the right to nominate on the Committee of Management of such society not more than two persons one of whom shall be a Government servant, so, however, that the Government servant shall not vote at an election of an office-bearer of the society.
Provided that where the society is engaged in production of sugar and--
(i) the share capital subscribed to by the State Government is not less than one crore rupees, or
(ii) the share of the State Government in the share capital of the society exceed fifty per cent of the total share capital of the society, or
(iii) the State Government has given loans or made advances to the society, or guaranteed the repayment of principal or payment of interest on debenture, issued by the society or guaranteed the repayment of principal and interest on loans and advances to the society and the amount exceeds fifty per cent in the aggregate of the total amount so borrowed by the society.
the State Government shall also have the right to nominate the Chairman of the Committee of Management, who shall be a Government servant, of such societies and their apex society, namely, the Uttar Pradesh Co-operative Sugar Factories Federation Ltd.
(2) A person nominated under sub-section (1) shall hold office during the pleasure of the State Government.
(3) The right of nomination vested in the 11[Joint Registrar-in-charge or Deputy Registrar-in-charge] under this section may be delegated by it to any authority specified by it in that behalf.
Explanation.--For the purpose of this section any guarantee given by the Central Government on the recommendation of the State Government shall be deemed to be a guarantee given by the State Government."
Under Section 34, the State Government has a right to nominate on the Committee of Management of such society not more than two persons in cases as mentioned in the said section. It is not denied that the State Government gives loan and makes advances to respondent no. 1 and the U.P. Sahakari Gramin Vikas Bank is run on the financial aid and grants provided by the State as has been submitted by learned counsel for the respondents. The respondent no. 1 thus, is clearly covered within the meaning of section 34 and with regard to recovery of dues of such society section 95-A is fully attracted. As mentioned above, the respondent no. 1 is registered cooperative society within the meaning of U.P. Cooperative Societies Act, 1965 by virtue of section 131 of 1965 Act. Hence, Section 95-A is fully attracted in the facts of the present case. As submitted by learned counsel for the respondents, the agricultural land of less than 3.125 acres cannot be sold hence, the respondent no. 1 can adopt the other process of recovery as provided. Thus, the respondents are free to adopt other process of recovery except for auction of the land result of which may render the agriculturist having less than land 3.125 acres.
Full Bench judgment of this Court in Smt. Sharda Devi (supra), which has been relied by learned counsel for the petitioner has laid down that recovery of dues by banking company under U.P. Public Moneys (Recovery of Dues) Act, 1972 can be taken only when the loan of advance grant or credit has been given by bank under a State sponsored scheme and not otherwise. In the present case, the provisions of U.P. Public Moneys (Recovery of Dues) Act, 1972 has not been resorted to by respondent no. 1 nor recovery has been initiated under the 1972 Act hence, the said Full Bench judgment has no application in the facts of the present case.
In the writ petition, it has also been alleged that recovery is time barred under the provisions of the Indian Limitation Act. Under section 92 of the U.P. Cooperative Societies Act, 1965, the time for execution is provided as 12 years. No foundation has been laid down in the writ petition as to how the issuance of certificate under section 95-A of U.P. Cooperative Societies Act is barred by any law of limitation. Due to above reason, the above submission has not been pressed.
No ground has been made out to quash the recovery certificate as well as citation issued by the Tahsildar for recovery. The petitioner is not entitled for any relief. However, as contended by learned counsel for the respondents, recovery can be effected by any means other than auction of the mortgaged land of the petitioner, which is less than 3.125 acre.
Subject to above, the writ petition is dismissed.
Order Date :- 4.3.2011 LA/-