WP/21264/2002 of R.Ramesh Kumar Vs Divisional Co-op. Officer cum Sale Officer, on 29 December 2006

ORDER:

It appears that in the year 1992, the second petitioner obtained aloan from the third respondent bank, which was initially registeredunder the Andhra Pradesh Cooperative Societies Act, 1964 (for short‘the 1964 Act’) and later, under the Andhra Pradesh Mutually AidedCooperative Societies Act, 1995 (for short ‘the 1995 Act’) with effectfrom 19.04.1997. The impugned notice vide L.F.No.H.35/276, dated19.09.2002, was issued by the first respondent purported to be underRule 52(11)(e) of the Andhra Pradesh Cooperative Society Rules (forshort “the Rules”), calling for auction of house bearing No.3-4-681belonging to the petitioners.

The petitioners have categorically asserted at para Nos.7, 8 and9 of the affidavit filed in support of the writ petition that once the societywas registered under the 1995 Act, the provisions of the 1964 Act haveno relevance and no action could be taken by the respondents underthe impugned notice.

Per contra, the respondents have filed counter affidavit assertingthat the issue was already decided in W.P.M.P.No.30295 of 1999 inW.P.No.24096 of 1999, dated 30.11.1999, that the proceedingsinstituted before the competent authorities under the 1964 Act prior tothe date of incorporation of the bank under the 1995 Act shall continue to be in force and shall be adjudicated by the authorities before whomthe matters instituted were pending.

Heard both sides.

It is an admitted fact that the Andhra Pradesh Mutually AidedCooperative Societies Act came into force with effect from 01.06.1995and the third respondent bank was converted into mutually aidedcooperative society with effect from 19.04.1997. A certificate underSection 71(1) of the 1964 Act was obtained by the Society on23.02.1995 and the same is sought to be executed under the 1964 Act,which has no application. In fact, in view of Section 36 of the 1995 Act,execution proceedings under Chapter X of the 1964 Act have norelevance and are not applicable to the case on hand. In this case,there were no proceedings pending for execution as on the date ofregistration of the Society under the 1995 Act. Therefore, theexecution proceedings could be taken up only under the 1995 Act.

Section 36 of the 1995 Act reads as under:

36. Execution of decisions, decrees and orders:- In regard to execution of decisions, decreesand orders, all the provisions of Chapter X of theAndhra Pradesh Co-operative Societies Act,1964 shallmutatis mutandies apply toCooperative Societies registered under this Act,such however, that all references to the Registrarin the said Act shall be construed to be areference to the Co-operative Tribunal in theirapplication to Co-operative Societies registeredunder this Act.

In view of the above, the respondents have to approach theCooperative Tribunal for the purpose of execution of the orders, dated23.02.1995, passed by the authorities under Section 71(1) of the 1964Act as they cannot invoke the provisions of Rule 52(11)(e) of the Rules and auction the schedule property. Therefore, the impugned notice,dated 19.09.2002, issued by the first respondent is liable to be setaside and is accordingly set aside.

However, it is always open for the respondents to invoke theprovisions of Section 36 of the 1995 Act and workout their remedies asare available under the law.

With the above observations, the writ petition is allowed. Noorder as to costs.

29[th] December, 2006.

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(C.V.RAMULU, J)

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