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indu Bhushan Gupta Vs. State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Constitution
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 386 of 1965
Judge
Reported inAIR1972All557
ActsCo-operative Societies Act, 1912 - Sections 23, 43 and 43(2); Uttar Pradesh Co-operative Societies Rules, 1936 - Rules 115 and 137; Constitution of India - Article 14
Appellantindu Bhushan Gupta
RespondentState of U.P. and ors.
Appellant AdvocateFaujdar Rai and ;G.N. Kunzru, Advs.
Respondent AdvocateK.M. Sinha, Adv. and ;Shambhu Prasad, Standing Counsel
DispositionAppeal dismissed
Excerpt:
.....societies rule, 1936 - sections empowers state government to make rules for appropriate enforcement of awards - no justifications for holding that section 44 restricts the application under section 43(2)(i) - rule 137 cannot be held invalid - - it cannot hence be said that the rule goes beyond the rule making power conferred by clause (1). it is true that there are other provisions like section 44, which expressly provide for the recovery of sums due to the government as arrears of land revenue. 9. the various points urged in support of the appeal having failed, the same is dismissed with costs......44, clause (1) of section 43(2) confers power on the state government to make rules for appropriate enforcement of the awards. there is no justification for holding that section 44 in any manner restricts the application of clause (1) of section 43(2) and excludes the enforcement of awards by recovery of moneys due thereunder as arrears of land revenue. in our opinion, rule 137 cannot be held invalid on either of grounds urged on behalf of the appellant.9. the various points urged in support of the appeal having failed, the same is dismissed with costs.
Judgment:

Satish Chandra, J.

1. The appellant, as a member of the Azamgarh Gram Co-operative Society, took loans from the Society aggregating Rs. 9,000/-. Disputeshaving arisen they were referred to arbitration. The arbitrator by his award dated 12th May, 1951, awarded a sum of Rupees 11,294/- as the principal and interest in favour of the Society and against the appellant. The appellant's appeal was dismissed by the Deputy Registrar, though the award in respect of interest was modified. Due to certain moves of the appellant, recovery of the amount was stayed at the instance of the State Government. But the proceedings were re-started somewhere in 1959. Thereupon, the appellant preferred a writ petition in this Court, which was however, dismissed. Hence the present appeal.

2. The learned Counsel for the appellant has reiterated before us the three points that were taken before the learned Single Judge. After having heard learned Counsel, we find no substance in any of them.

3. The first point urged was that the Rule 115 of the Co-operative Societies Rules, requiring arbitration, was ultra vires Section 43 of the Co-operative Societies Act. The validity of this Rule has, however, been upheld by a Full Bench in Abu Bakar v. Handloom Weavers Co-operative Society, 1965 All LJ 831 = (AIR 1966 All 12 (FB)). The Full Bench decision is binding on us. So this point fails.

4. The second point urged was that the recovery proceedings are barred by time under Section 23 of the Act. Section 23 provides that the liability of a past member for the debts of a registered society as they existed at the time when he ceased to be a member of the society shall continue for a period of two years from the date of his ceasing to be a member. According to the appellant, he ceased to be a member of the Society on 30th June, 1953, and, so, his liability extinguished after two years of that date. The provision restricts the liability of a past member in relation to the debts of the Society, that is to say, if a debt due from the society is sought to be recovered from a member, he will not be liable to pay after the expiry of two years from the date when he ceased to be a member. This Section is not applicable to a situation where the member himself is indebted to the Society. The words 'debts of a registered society' occurring in Section 23 do not extend to a case where the member himself is indebted to the Society. We see no merit in this submission.

5. In the next place, the validity of Rule 137 of the Co-operative Societies Rules was challenged on the ground that it was ultra vires, and also on the ground of violation of Article 14 of the Constitution.

6. Rule 137 provides for the enforcement of an award. It says:--

'137. Awards of arbitrators and decisions of an Assistant Registrar or the Registrar may be enforced in either of the following ways:

(i) On a requisition to the Collector of the District made by the Registrar, all sums recoverable under the award or decision shall be recovered as if they were arrears of land revenue.

(ii) On application to the Civil Court having jurisdiction over the subject-matter of the award or decision, that Court shall enforce the award or decision as if it were a decree of the Court.'

It was urged that this provision confers an unguided power on the authorities to adopt one or the other mode of recovery mentioned in the two clauses. There are several difficulties in accepting this submission. In the first place, while the Registrar has been authorised to requisition recovery as arrears of land revenue under Clause (i) he has not been specifically authorised to apply to the Civil Court for the enforcement of the award under Clause (ii). Normally, the decree-holder or the person in whose favour the award has been made, can apply to the Civil Court for enforcement of the same. So, it cannot be said that an arbitrary discretion has been given to the same person to adopt one or the other of the two modes, one of which is more adverse to the judgment-debtor.

7. Further, it appears to us that Clause (i) can be invoked for recovery of sums of money that may, be recoverable under an award or decision. If an award deals with a matter other than recovery of money, that cannot be enforced under Clause (i). In this context and in the further context of the fact that, under Clause (ii) it is the decree-holder or the person in whose favour the award has been made, who can apply to the Civil Court, it appears that Clause (ii) is confined to the enforcement of that portion of the award which does not deal with recovery of sums of money. In case an award is a composite one, it may be said that the decree-holder may make an application to the Civil Court under Clause (ii) for the enforcement of the award as a whole and that may bring in recovery of money decree also under Clause (ii). Even if this interpretation is permissible, it will not involve the vice of discretion. It cannot be said that a discretionary power has been vested in one individual to adopt one or the 'other of the two prescribed modes of recovery. The decree-holder can make an application under Clause (ii). He has no power to requisition, under the provisions of Clause (i), for recovery as arrears of land revenue. In either view, Rule 137 does not, in our opinion, violate Article 14 of the Constitution.

8. In the next place, it was urged that Rule 137 is ultra vires Section 43(2)(1) of the Co-operative Societies Act. Clause (1) confers power on the State Government to make rules regarding the enforcement ofa decision of the Registrar or an award of the arbitrator. Recovery of money awarded under an award as an arrear of land revenue is undoubtedly a mode of enforcing the award. It cannot hence be said that the Rule goes beyond the rule making power conferred by Clause (1). It is true that there are other provisions like Section 44, which expressly provide for the recovery of sums due to the Government as arrears of land revenue. But in spite of Section 44, Clause (1) of Section 43(2) confers power on the State Government to make rules for appropriate enforcement of the awards. There is no justification for holding that Section 44 in any manner restricts the application of Clause (1) of Section 43(2) and excludes the enforcement of awards by recovery of moneys due thereunder as arrears of land revenue. In our opinion, Rule 137 cannot be held invalid on either of grounds urged on behalf of the appellant.

9. The various points urged in support of the appeal having failed, the same is dismissed with costs.


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