WP/12962/1997 of D. China Mallaiah, Vs District Registrar, on 29 December 2004

ORDER:

Heard Sri A.Sathyanarayana Reddy, learned counsel representing the writpetitioners and Sri V.Gopal Rao, learned counsel representing the respondents.

Sri Sathyanarayana Reddy, learned counsel representing the writ petitioners wouldcontend that as per the Government policy and the official instructions, loansobtained by the petitioners-farmers are exempted to an extent of Rs.10,000/-.Learned counsel also would submit that despite the policy of the CentralGovernment, all of a sudden the respondents 2 and 3 without any notice, had beenregularly visiting the house of the petitioners with subordinates and were threateningthe petitioners to repay the loans, otherwise they would attach the movableproperties of the petitioners and such acts are not authorized by law.

On the contrary, Sri.Gopal Rao, learned Standing Counsel representing therespondents had taken this Court through the averments made in the counter-affidavit and would submit that in view of the fact that already a certificate had beenissued under Section 71 of the Andhra Pradesh Co-operative Societies Act, 1964(for short “the Act”), the petitioners are having a remedy by way of an appeal underSection 76 of the Act and without availing the same the present writ petition hadbeen filed without any justification, whatsoever.

The petitioners filed the present writ petition for a writ or order or directionmore particularly in the nature of writ of Mandamus declaring the action of therespondents in insisting for the repayment of the loan amount taken by thepetitioners from the second respondent Bank in the financial year 1984-85 as highlyarbitrary and illegal and for further direction not to insist for repayment of the saidloan hereafter and pass suitable orders.

It is stated that the petitioners had obtained long term loan from the Society for thedevelopment of agricultural lands in the financial year 1984-85. It is further statedthat in the year 1987 the then Deputy Prime Minister had announced a Governmentpolicy and issued official instructions that the loans obtained by the farmers to anextent of Rs.10,000/- will be exempted from repayment. It is also stated that the respondents had not taken any steps subsequent thereto. But, all of a sudden in theyear 1997 there were threats of attachment of movable properties of the petitionersand it is stated that such acts are illegal and unauthorized by law. It is also statedthat the third respondent had made the orders without following the procedurespecified under Section 71 of the Act specified supra and in the said circumstances,this writ petition was filed.

Respondents filed counter-affidavit denying the allegations. It is stated that thepetitioners are chronic defaulters and they failed to pay the instalments regularly.Hence the second respondent was forced to file an application under Section 71 ofthe Act before the third respondent and the third respondent issued notices to thepetitioners by fixing a particular date of hearing requesting them to appear on thedate of hearing and file their objections. The petitioners, having received and havingknowledge about the notices, failed to file the objections or to appear on the date ofhearing. Hence the third respondent issued certificate under Section 71 of the Act. Itis also specifically stated that it is true that the Government of India announced adebt relief scheme in the year 1989 whereunder an amount of Rs.10,000/- waswaived for the loan outstanding as on 02.10.1989 with certain conditions. It issubmitted that the respondents extended the benefit of the scheme as per the normsfixed to the petitioners as shown in the annexure and hence, the allegations to thecontra are untenable. Further specific stand was taken that the petitioners are havingan effective alternative remedy by way of appeal under Section 76 of the Act to theAndhra Pradesh Co-operative Tribunal and hence, on this ground too the writpetition is liable to be dismissed.

The factual matrix already had been narrated above. Section 71 of the Act whichdeals with the recovery of debts, reads as hereunder:

“Recovery of debts:- (1) Notwithstanding anything in this Act or in any otherlaw for the time being in force and without prejudice to any other mode ofrecovery which is being taken or may be taken, the Registrar may, (on theapplication made by a society or financing bank or federal society as the casemay be, for the recovery of arrears of any sum advanced to any of its membersand on furnishing a statement) of accounts in respect of the arrears and aftermaking such inquiry as he deems fit issue a certificate for the recovery of theamount stated therein to be due as arrears.

(2) Where the Registrar is satisfied that (a society) has failed to take action

Facts

under sub-section (1) in respect of any amount due as arrears, he may on hisown motion, and after making such enquiry as he deems fit, issue a certificatefor the recovery of the amount stated therein to be due as arrears and such acertificate shall be deemed to have been issued on an application made by thesociety concerned.

(3) A certificate issued by the Registrar under sub-section (1) or sub-section (2)shall be final and conclusive proof of the arrears stated to be due therein andthe certificate shall be executed in the manner specified in sub-section (2) ofSection 70).”

Section 76 of the Act,which deals with the appeals, reads as hereunder:

“Appeal:- (1) Any person or society aggrieved by any decision passed or ordermade under Section 6, Section 9A, Section 9B, Section 9C, Section 12A,Section 13, Section 15A, Section 16, Section 17, Section 19, Section 21,Section 21A, Section 21AA, Section 23, Sub-section (3) of Section 32, Section34, Section 34A, 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 withdrawalor transfer of a dispute under sub-section (3) of Section 62.

(2) On a reference made by the Registrar of Co-operative Societies, the Tribunal shall call for and examine the records of any proceedingwhich is appealable to it for the purpose of satisfying itself as to the legality orpropriety of any decision or order passed and where it appears to the Tribunalthat any such decision or order should be modified, annulled or reversed, theTribunal may pass such order thereon as it may deem fit:

(3) Any appeal under sub-section (1) shall, subject to the other provisions ofthis Act, be preferred within sixty days from the date of communication to theappellant of the decision, refusal or order complained of but the Tribunal mayadmit an appeal preferred after the said period of sixty days, if it is satisfiedthat the appellant has sufficient cause for not preferring the appeal within thesaid period.

(4) In disposing of an appeal under this Section, the Tribunal may, after givingthe parties an opportunity of making their representations, pass such orderthereon as it may deem fit.

(5) The decision or order of the Tribunal on appeal shall be final.

(6) The Tribunal may pass such interim orders pending the decision on theappeal as may deem fit.

(7) The Tribunal may award costs in any proceedings before that authority to be paid either out of the funds of the society or by such party to the appeal as theTribunal may deem fit.”

Conclusion

Even as per the averments made in the affidavit filed in support of the writ petition itis clear that orders had been passed under Section 71 of the Act. Specific stand wastaken by the respondents in the counter-affidavit that as against the said orders,remedy of appeal is provided for under the Act. No doubt the stand taken by the writpetitioners is that the orders were made without following the procedure as specifiedunder Section 71 of the Act. It is not the case of the writ petitioners that the ordersmade are totally by an incompetent authority or the authority who made the orderslacks the jurisdiction to make such orders. When that being so, when an effectiveremedy by way of appeal is provided for under Section 76 of the Act, there is nojustification on the part of the writ petitioners to approach this Court straight away byinvoking the extra-ordinary jurisdiction under Article 226 of the Constitution of Indiawithout availing the alternative remedy by way of appeal. In view of the same, theother factual details, which had been narrated in the affidavit filed in support of thewrit petition and also the stand taken by the respondents in the counter-affidavitneed not be adverted to in elaboration.

Hence, liberty is given to the writ petitioners to prefer appeals under Section76 of the Act if they are so advised within a period of one month from today. Exceptmaking this observation, no other relief can be granted in the present writ petition.

The writ petition is accordingly disposed of. No order as to costs.

29-12-2004 P.S.NARAYANA, J

sh

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To

1 District Registrar,

The Karimnagar Dist Co.operative Central Bank Ltd., Karimnagar.

2 Branch Manager,

The Co.operative Agricultural Development Bank Ltd., Huzarabad, Karimnagar Dist.

3 The Co-operative Sub Reistrar/ Arbitratior & Executive No.I The Karimnagar District Co-opeative Central Bank Ltd., Karimnagar.

4 Two L.R. copies.

5 The Under Secretary, Union of India, Ministry of Law, Justice and Company Affairs, New Delhi.

6 The Secretary, A.P. Advocates’ Association Library, High Court Buildings, Hyderabad.

7 Two C.D.copies.