SCA/2362/1982 of MANGALBHAI AJABHAI Vs GENERAL MANAGAR on 22 December 1995

ORAL JUDGMENT:

None present for the petitioner. Mr. J.V.Mehta for Mr. S.I.Nanavati appears for therespondents.

The petitioners were admittedly members ofA.C.C.Kuarry Kamdar Sahakari Shrafi Mandli Ltd., acooperative society registered under the provisions of theGujarat Cooperative Societies Act, 1961. It appears thatthe elected Board of the Society was superseded by theRegistrar of Cooperative Societies of the State of Gujaratand Administrator of the society was appointed. Theadministrator, on his appointment, filed recovery casesagainst the petitioners for the amounts outstanding againsttheir names in the record of the Society. Individual caseshave been filed, but in most of the cases ex parte decreehas been passed by the Board of Nominees. The petitionershad filed appeals against the said orders of the Board ofNominees before the Cooperative Tribunal. The appeals havealso been dismissed, may be for absence of the petitionersand their advocates. When the decreed attained finality,the Administrator put the same in execution.

2. As it happens, the real difficulty of the decreeholder arises only when he puts the decree in execution,which, in fact, happened in the present case also. Itappears that the petitioners also have not appeared in theexecution proceedings. Taking into consideration the factthat the petitioners are workmen in the A.C.C. Lime Quarry,it has been decided by the executing Court to recover theamount from them in monthly instalments of Rs.50/-. Whenthe recovery order was sought to be given effect to, thiswrit petition is filed by the petitioners before this Court.This court granted interim relief and stayed the recovery.

3. In the writ petition the petitioners veryconveniently avoided giving all the basic, relevant andmaterial facts. This is a joint writ petition which hasbeen filed by the petitioners. Though the Court may not gointo technicalities in the writ petition, sitting underArticle 226 of the Constitution, in certain cases the Courthas to consider whether a joint writ petition ismaintainable and, if it is filed, whether it should beentertained.

4. Where there is individual cause of action which isindisputably there, the petitioners' joint writ petition isnot maintainable. Here is a case where individual recoverycases have been filed and separate decrees have been passedby the Board of Nominees. Appeals have also been filed. Inthe facts of the case, joint writ petition could have been

Facts

filed only by those persons who have been joined byrespondent No.2 in the recovery cases. Joint writ petitionby 64 persons, where it is not their case that they werejointly made party in the case and no separate case has beenfiled against them, is not maintainable. It is individualcases for recovery of amounts of loan outstanding in theaccounts of the Society against the petitioners. Thesefacts were required to be given out for consideration. Thiscasual drafting of writ petition without giving any basis,without giving details of the cases which have been filed,the date or dates on which decrees have been passed, andother particulars of the appeals which have been filedbefore the Tribunal, with all necessary details of the dateof dismissal, etc., is highly deprecated. The writ petitionexhibits poor standard of drafting. It is settled law thatwhosoever approaches this Court by resorting to theextraordinary jurisdiction under Article 226 of theConstitution is expected to disclose all the material andrelevant facts faithfully in the writ petition. After goingthrough the contents of the writ petition it is toodifficult for the Court to get the facts of the case andwhat really is the case against the petitioners and thejudgment which has bee given both by the Board of Nomineesas well as by the appellate authority.

5. Mentioning of all the relevant and material factsfacilitates the Court to appreciate the griev..R

petitioner as well as to decide the matters in correctperspective. In the present case I am constrained to saythat the counsel who filed this writ petition has adoptedperceptibly casual approach as is evident from the filing ofincomplete and inaccurate pleadings lacking in all respects,and from his absence from the court when the matter wascalled out.

6. Though on the aforesaid ground the writ petitiondeserves to be dismissed, certain other aspects needreference in this regard. In para 9 of the writ petitionthe petitioners prayed for the reliefs as follows:

"9. It is therefore prayed that on the above grounds, (a) The deduction of Rs.50/- per month from the wages of the petitioners being illegal and void, the opponent No.1 be restrained from deducting any amount from the wages payable .R

(b) That pending hearing and final disposal of this writ petition, stay may be granted in the interest of justice to restraining the opponent No.1 or his officer, to deducting any amount from the wages payable to the petitioners.

(c) .. ..

(d) Your Lordship be pleased to pass order that opponent No.1 should pay back the deducted wages to the petitioners.

(e) ... ... "

The petitioners' only grievance is against the order ofrecovery of the amount, irrespective of the decrees havingbeen passed by the Board of Nominees and confirmed by theTribunal, in monthly instalment of Rs.50/-. The petitionershave not challenged the decree passed by the Board ofNominees in respect of the amounts which stood outstandingagainst them in the account of the Society. Not only this,the order which has been passed by the Tribunal in appealfiled by the petitioners against the award of the Board ofnominees has also not been challenged. Recovery of theamount at the rate of Rs.50/-per month is only aconsequential order and when the petitioners have failed tosuccessfully challenge the award of the Board of nominees,this writ petition against the consequential order istherefore not maintainable. When the main award is notchallenged, the petitioners have no cause whatsoever tochallenge the order of recovery of the amount. From thedocument which has been filed by the petitioners in the writpetition it comes out that the award has been passed in1970s and at no point of time the petitioners have feltaggrieved of those awards. Otherwise they could haveapproached this Court. Only at this stage when thededuction of the amount was commenced from their wages, thiswrit petition has been filed in 1982.

7. Taking into consideration the aforesaid facts andcircumstances this writ petition is wholly misconceived andno relief whatsoever can be granted to the petitioners.This is because though the petitioners have taken amounts ofloan from the Society, they have not paid the amounts andwhen the Administrator, on his appointment, started theproceedings for recovery of the amounts, they slept overtheir rights by not choosing to appear in those proceedings.Not only this, thereafter they filed appeals, but again,allowed those appeals to be dismissed for non prosecution.Now in the writ petition a plea is advanced that theSecretary of the Society has misappropriated huge amount of

the Society and he has debited the amounts to thepetitioners who are illiterate workers. The petitionersfurther stated that the Secretary of the Society has takenfalse thumb impressions and false signatures of thepetitioners. This sort of pleas are normally taken afterthe awards have been passed and recovery proceedings havebeen started. If the facts, as stated earlier, werecorrect, then the petitioners ought to have contested thecase filed against them by the Administrator before theBoard of Nominees. These are questions of facts on whichfull-fledged inquiry has to be made. These questions offacts need to be proved by producing cogent and materialevidence. The petitioners have not disputed that theamounts in respect of which the awards have been passedagainst them are outstanding in the accounts of the Societyagainst them. When the petitioners have admitted thisposition and now they want to take the plea that false thumbimpressions and false signatures were taken in the accountsbooks of the Society, the burden lies upon them to prove andestablish the same. The petitioners may be very poor andilliterate persons. But that cannot be a ground for thisCourt to accept what they stated in the writ petition to becorrect. Sitting under Article 226 of the Constitution ofIndia, this Court can only correct the errors or illegalitycommitted by the lower authorities while passing thejudgments and awards. The Court will not come to the rescueof the petitioners by holding rowing and fishing inquiry.

8. In the result this writ petition fails, and the sameis dismissed. Recovery of the amount was stayed by theinterim order passed by this Court on 13-7-1982. It ishereby ordered that the petitioners shall pay interest onthe outstanding amounts at the rate of 12% per annum from13th July, 1982. Respondent No.2 is directed to calculatethe amount of interest and realise the same from thepetitioners by reasonable monthly instalments not exceedingRs.50/- per month. The petitioners are directed to payRs.100/- each by way of cost to respondent No.2. Ruledischarged. Ad-interim relief granted earlier standsvacated.

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