1. Rule. With the consent of the parties, the matter is taken up for hearing today.
2. Special Civil Applications No. 15763 & 15766 of 2010 have been filed challenging the orders dated 16.12.2008 passed by the respondent no. 3 and 16.04.2008 passed by the respondent no. 2 dismissing the Revision Application filed by the petitioner and also the order dated 05.06.2010 passed by the respondent no. 1 in Revision Application filed by the petitioner.
2.1 Special Civil Applications No. 6379 & 6380 of 2009 have been filed challenging the orders dated 26.03.2009 passed by the respondent no. 3 Deputy Secretary (Appeal) and order dated 16.04.2008 passed by respondent no. 2 Additional Registrar (Appeal) and further prayed to confirm certificate issued by the respondent no. 4 District Registrar. The petitioners herein have also sought a clarification that the petitioner Mandali is entitled to recover Rs. 120000/-; remaining loan amount with compound interest at 16% from 1993 or atleast from first certificate dated 27.11.1997.
3. It is the case of the petitioner that on 27.11.1997 at the instance of respondent no. 4, respondent no. 3 issued certificate under Section 106 of the Cooperative Societies Act and therefore Revision Applications were filed by the petitioners. The respondent no. 2 after hearing the parties quashed and set aside the certificate issued by respondent no.
3 and it was also thereby directed to decide the matter afresh. It is the case of the petitioner that as no action was taken for around seven years the petitioners again challenged the certificate before the respondent no. 1. The respondent no. 1 vide order dated 16.04.2008 directed the petitioners to pay the amount with interest for two years. The petitioner approached the Recovery Officer, Bhavnagar District Cooperative Bank Limited who did not accept the money even though certificate under Section 106 of the Act had already been issued by the respondent no. 3. The respondent no. 4 society therefore filed Revision Application and the same was dismissed on 26.03.2009 and the respondent no. 1 dismissed the Revision Application of the petitioners on 05.06.2010. Being aggrieved by the entire turn of events, the petitioners have preferred the present petitions.
4. Mr. B.S. Patel, learned advocate appearing for the petitioners in Special Civil Applications No. 15763 & 15766 of 2010 submitted that the provisions of Section 106 of the Act is for recovery of loan/ finance of crop and seasonal finance and admittedly according to the order impugned the loan is advanced on a fixed deposit and in that event exercise of powers under section 106 of the Act by the respondent no. 3 is without authority and requires to be quashed.
4.1 Mr. Patel further submitted that after a period of around 9 years the respondent no. 3 issued certificate without giving any opportunity of being heard. He submitted that the same is therefore not only arbitrary but also against the principles of natural justice.
5. Pursuant to the notice issued by this Court, the petitioners have deposited Rs. 2,50,000/-. Prima facie, it appears that the certificate under Section 106 of the Act has been issued without issuing notice or without affording any opportunity to the petitioners of being heard and therefore the same is in violation of the principles of natural justice. Even otherwise the issue is well settled by decision of this Court in the case of Parvatiben Chandrashekhar Trivedi Vs. Special Recovery Officer reported in 1985(1) GLR 305.
6. In view of the fact that the petitioners were not heard before passing the impugned orders by the Tribunal, which is also not disputed by learned advocates for the respondents, this court is of the opinion that the same is pure violation of principles of natural justice and therefore the orders passed on such basis cannot survive.
7. In the premises aforesaid, Special Civil Applications No. 15763 & 15766 of 2010 are hereby allowed. The matters are remanded to the District Registrar for fresh consideration on merits. The District Registrar shall hear the parties and pass fresh order on merits. This order is passed without recording any opinion on merits and only in view of the fact that the petitioners were not heard before passing the order, which amounts to violation of principles of natural justice. Therefore the Tribunal shall hear the petitioners and all concerned including the respondents and after considering the submissions made by them pass an order in accordance with law. Rule is made absolute accordingly.
8. In view of the fact that the impugned orders are quashed and set aside, Special Civil Applications No. 6379 & 6380 of 2009 shall not survive and are disposed of accordingly. Rule is discharged accordingly.
(K.S. JHAVERI, J.) Divya//