J.B. Mehta, J.
1. The petitioner who was the manager of the opponent No. 2 Co-operative Society and also the member of its managing committee was held to be liable jointly with others by the order of the Co-operative Tribunal dated September 19, 1965, and was ordered to pay a sum of Rs. 25149-51 which had been defalcated. After the said liability was finally fixed in appeal, the said award of the Tribunal was sought to be executed against the petitioner by coercive process under the Land Revenue Code as provided under Section 103(b) of the Gujarat Co-operative Societies Act. 1961. hereinafter referred to as the Act. As warrant of arrest was issued against the petitioner. the petitioner has challenged the said coercive process by attacking the vires of the provisions of section 103 of the Act and sections 157 and 158 of the Code as violating Article 14. The petitioner has also challenged the action of the Collector as he tried to follow this harsher procedure of coercive recovery without exhausting other processes, Section 103(b) was also attacked on the ground that it was also repugnant to the provisions of the Civil Procedure Code for recovery of such award which was deemed to be a decree. The petitioner has therefore on these grounds challenged
the arrest warrant as violating his fundamental right in this petition. The District Registrar in his affidavit has stated that out of five delinquents the petitioner had not filed any appeal before the Tribunal. Therefore, besides the original liability of Rs. 38,753.63 fixed on the petitioner under Section 93 along with the others additional liability of the petitioner was fixed in appeal at the sum mentioned by him. The certificate under Section 103(b) was issued on December. 7, 1967 and the Collector had been moved to recover this amount as arrears of land revenue. The warrant of arrest was issued under Section 157 of the Code and sent to the P. S. I. for execution at Veraval but as the petitioner was not at Veraval, the warrant could not be executed. It was also stated that all remedies were exhausted and as no other remedy was available the Special Recovery Officer has requested the Collector on November 8, 1968 to take action under Section 157 of the Code. The attachment procedure could not be followed as no property of the petitioner could be traced. The respondents therefore tried to support the validity of the aforesaid warrant, and have further contended that the aforesaid section are intra vires.
2. Section 103 of the Act is as under:--
'Every order passed by the Registrar or a person authorised by him under Section 93 or by the Registrar him nominee or board of nominees under Section 100 or 101 every order passed in appeal under S. 102, every order passed by a Liquidator under Section 110. every order passed by the State Government in appeal against orders passed under Section 110. and every order passed in revision under Section 155, shall, not carried out.
(a) on a certificate signed by the Registrar or a Liquidator be deemed to be a decree of a Civil Court, as defined in clause (2) of Section 2 of the Code of Civil Procedure 1908, and shall be executed in the same manner as a decree of such Court. or
(b) be executed according to the provisions of the Land Revenue Code and the rules thereunder for the time being in force for the recovery of arrears of land revenue:
Provided that any application for the recovery in such manner of any such sum shall be made to the Collector . and shall be accompanied by a certificate signed by the Registrar, or by any Assistant Registrar to whom the said power has been delegated by the Registrar. Such application shall be made within twelve year from the date fixed in the order and if no such date is fixed from the date of the order'.
A bare perusal of the section shows that this is not a question of two competing powers. The authority concerned has only one power. If the Civil Court is moved under Section 103(a) for the purpose of the execution in a Civil Court, the certificate signed by the Registrar or liquidator is deemed by fiction to be decree of the Court and is executed as a Civil Court's decree. If, however, the application for recovery of any such sum due under the order passed by the Registrar under Section 93 or in appeal under Section 102 made to the Collector. it is has to be accompanied by a certificate signed by the Registrar or Assistant Registrar to whom the power is delegated in that connection and as it has to be made within 12 years from the dated fixed in the order and if no date if fixed from the date of the order. Therefore, where the application is made to the Civil Court or to the Collector the Civil Court or the Collector shall be exercising the mode of execution which is provided in Section 103. The Civil Court would be enforcing the recovery by executing this order as a deemed decree of that Court while the Collector would be enforcing the recovery as if the sum due was an arrear of land revenue which has to be recovered under the Code.
In Dhrangadhra Chemical Works Ltd. v. The Employees State Insurance Corpn., (1972) 13 Guj LR 230 p. 255, speaking for the Division Bench consisting of myself and B. K. Mehta, J., I had in terms pointed out that the decision in Northern India Caterers Ltd. v. State of Punjab. : 3SCR399 could not support the attack to the said provisions in the Employees State Insurance Act on the ground that they violated equality guarantee enshrined in Article 14. In facts. in the minority decision in that case a host of previous decision of the Supreme Court has been given and where the Revenue Recovery Acts and other Acts creating special Tribunal and procedure for the expeditious recovery of revenue and State dues were held to be in public interest and that they did not violate Article 14. Even in the Express Newspaper's case. : (1961)ILLJ339SC , their Lordships had upheld the attack on Section 17 on the score of Article 14 where it provided recovery of dues of employees as arrears of land revenue. Therefore, it is well settled even by the majority decision in the Northern India Caterer's case that the guarantee is violated only where the authority has unguided power to pick and choose. In the later decision in State of Gujarat v. Shantilal Mangaldas. : 3SCR341 , where there were no two competing powers in the filed and the authority had one single power of where his discretion was not an arbitrary unguided discretion but a canalised discretion. as per the norms of the states the said guarantee of the Article 14 was not to be violated. Their Lordships made pertinent reference to the correct principle laid down in (1857) 1 Ch D 426 that
'when power is given under a statute to do a certain thing a in certain way the thing must be done in that way or not at all'.
Therefore. in that decision in the Dhrangadhra Chemical Co's case, (1972) 13 Guj LR 230. I had in terms held that Chapter V-A of the Employees State Insurance Act was a self-contained chapter which no only created a liability for special contribution as an arrear of land revenue. Such contribution but it enacted its own remedy for collection of special contribution as an arrear of land revenue. Such a provision for recovery of the dues as provided therein as arrears of land revenue under the Code could never be held to be hit by Article 14. In the present case also the case is of a single power and not of two competing powers in the filed. Merely because the party entitled to the benefit of this order under the Act has two remedies to go to Civil Court or to the Collector, that would not make the provision violate the guarantee of Art. 14.
In Manoharlal v. State Maharashtra. : 1971CriLJ1157 , their Lordships pointed out that even where the Customs Officer had a discretion either to file a complaint or to take appropriate proceedings for adjudication as a customs offence such a discretionary power could never be struck down as discriminatory power. Their Lordships followed the earlier decision in Mata Jog Dobey v. H. C. Bhari : 28ITR941(SC) where the Government had discretion to give sanction against one public servant and to decline sanction against another under S. 197 of the Code. Their Lordship in terms pointed out that the discretionary power was not necessarily discriminatory and that abuse of discretion was not easily assumed when the power is vested in the Government or any such officer. Therefore. where the legislature has provided two different remedies for enforcing the recovery order by approaching the Civil Court or by approaching the Collector there is no question of two competing powers and in any event there being discretion either of the Court or of the statutory Collector under the Code the discretionary power could not never be attacked as discriminatory power that violates the guarantee of Article 14.
Miss Shah in this connection vehemently argued that in any even the legislature had created two classes of judgment-debtors for differential treatment; against some recovery could be under the Civil Procedure Code while against other this harsher recovery under the Land Revenue Code could be resorted to . The legislature had never created any discrimination when it had created such discretionary power by enacting two separate remedies for the benefits of persons in whose favour such order or recovery is passed. Miss Shah wanted to rely on certain judgment's where there were two procedures for assessment of liability and the guarantee Article 14 was held to be violated. In the present case we are not at the stage of such an assessment of liability. It is only after that stage is over and the stage is of recovery that this revenue recovery is provided in addition to the recovery of this amount under the order by treating it as a decree of the Court.
In Collector of Malabar v. Ibrahim : 1957CriLJ1030 of the Madras Revenue Recovery Act which provided for arrears of income-tax being recovered by coercive process including arrest and detention of the defaulter was held to be intra vires and not violating Article 19(1)(f) of Article 21. The arrest was as per the procedure established by law and it was not by was of penalty but only a mode of execution of recovery of the amount due. Therefore, such arrest and imprisonment of the defaulter under Section 48 could not be regarded as arrest and detention within the meaning of Arts. 21 14. Therefore, neither the Income-tax Act nor the Madras Revenue Recovery Act were held to violate Arts. 14 and 19 or 21 of the Constitution. There Lordships followed the earlier decision in Purshottam Govindiji V. B. M. Desai, AIR 1956 SC 20 where Section 13 of the Bombay Land Revenue Code. 1876. corresponding to Section 157 of the Code was held not to offend Article 14 when the warrant of arrest was issued for recovery of the demand certified by the provisions of the India Income-tax Act. Their Lordship had also pointed out that there was nothing in Section 48 of the Madras Act which required the Collector to given an opportunity of being heard. The Collector was given judicial discretion and that was the proper and valid constitutional safeguard. Therefore, in the view of the host of high authorities Miss Shah could hardly challenge Section 103(b) on the ground that it violates the equality guarantee enshrined in Article 14.
Even the question of vires of the scheme of Section 150. 157 and 158 of the Land Revenue Code is now concluded by the decision of the Division Bench consisting of myself and D. Act. Desai J. in Special C. Act. No. 266 of 1970 and others decided on 9-12-1970. D. Act. Desai J. speaking for the Division Bench in terms followed the ratio of the host of authorities which we have mentioned earlier under which the Revenue Recoveries Acts were held to be intra vires, when examined on the score of Article 14 and 19 of the Constitution including the decision of the Division Bench in Mahomed Hussein v. State, (1962) 3 Guj LR 666. It is true that the decision in Painter v,. The Liverpool Oil Gas Light Co., (1836) 42 RR 432 had been followed. chief Justice Lord Denman had observed as under:--
'It is an essential rule in the administration of justice that no man shall be punished without being heard in his defence; the party must be summoned before a warrant of distress is granted, as we decided in Rex v. Benn; and on that summons may circumstances may appear to show that a warrant of distress ought not to be granted'.
In that decision Section 149 of the Land Revenue Code was construed consistently with the principles of natural justice by holding that before the Collector proceeds for certifying the statement of account some notice or opportunity of hearing must be given to the alleged defaulter and after giving him an opportunity of hearing the Collector could proceed to certify and statement of accounts or to issue the certificate which was then to become conclusive piece of evidence under that provisions. If such a notice of heard was not given the certificate would not be valid and would not provided a conclusive piece of evidence. The Collector had to recover the ascertained amount which was due from the defaulter and therefore if those amounts were not adjudicated by the competent authorities. they could not be recovered by this summary process unless the amount was first determined or ascertained. That is why a notice in such cases would serve an important purpose as the authority might refuse to proceed with the summary recovery of the amount by way of arrears of land revenue if it was shown that it was not an ascertained amount or that more serious question has been raised when the amount had been rightly disputed. That aspect even could not help Miss Shah in the present case because in the present case amount was ascertained amount by the competent tribunal created under the Act whose decision had become final. The petitioner has never attempted to taken up a plea or that the amount had been paid up wholly or in part and. that therefore. the duly ascertained amount has not continued to remain in default. There was no point raised as regards the issuance of certificate by the competent authority. and the liability being undisputed the only question which is raised by Miss Shah is that this coercive process ought no to have been resorted to. Miss Shah had in this connection further argued that the legislature had put on par such individual dues with public dues by providing this method of recovery as arrears of land revenue. The co-operative movement has become a vital living movement in our welfare State and in order to encourage the co-operative movement if such dues are given some priority as other public dues in the interest of social justice,. it could hardly be alleged that the legislature had made any invidious discrimination. Therefore. there is no ground whatever made out which would justify and challenge on the score of Article 14 to the relevant provisions. Even the procedural safeguards could hardly be challenged because there is judicial discretion conferred on the Collector which is capable of correction under the Code and even the process of judicial review would be available. Besides, the provision is made in Section 157 by the proviso that no defaulter shall be detained in imprisonment for a longer period than the time limited by law in the case of the execution of a decree of the Civil Court for a debt equal in amount to the arrear of revenue day by the such a defaulter. Under Section 164 it is provided that any defaulter detained in custody or imprisonment shall forthwith be set at liberty and the execution of any process shall be stayed in the defaulter's giving before the Collector or other person nominated by him for the purpose or if the defaulter is in jail. before the officer in charge of sub-jail. security in the from of Schedule D. satisfactory to the Collector or to such other person or officer. Any person against whom proceedings are taken might pay the amount claimed under protest to the officer taking such proceedings and upon such payment being made the proceedings shall be stayed. Therefore. there are adequate safeguards provided.
Miss Shah however vehemently argued that as pointed out by Chief Justice Denamn, we should read a provision of prior notice before the coercive process of arrest was issued. Miss Shah ignores the fact that these dues have been finally ascertained by the competent Tribunal under the Act and even at the stage of issuance of the certificate we have read the provisions of notice and opportunity to be heard. Therefore the stage of assessment of liability and of issuance of conclusive certificate is already over. The arrest is not by way of any penalty. Therefore. the function which the Collector is now exercising of recovery of dues by this coercive process is not one of deciding liability or of imposing any penalty but is merely a function of execution by way of speedy recovery of these dues. In the context of such function when the authority had judicial discretion. the discretion would always be exercised in accordance with the circumstances of each case and in such a context principles of nature justice by way of a prior notice of hearing could hardly be appropriate as they might in some cases defeat the very purpose. Therefore, the judicial discretion along with the various controls which we have shown would show reasonable procedural machinery and therefore none of these provisions can be challenged either under Article 14 or Article 19.
3. Miss Shah next argued that the Collector should have followed the least coercive process first on true interpretation of the aforesaid scheme. In Luka Mathai v. Nellkantha Iyer. : 1SCR977 it was contended that when loan recovery was made the authority should have proceeded against the property on which the charge was created and the execution should not have been ordered against the other properties of the defaulter. At page 386 their Lordships approved the decision in Lakshaman Venkatesh v. Secretary of State. AIR 1939 Bom 183 while dealing with Section 7 of the Land Improvement Loans Act 1883. which was in terms similar to Section 7 of Travancore Regulation IX of 1094, it was observed that it was, therefore open to the Collector to adopt all or any of the four different methods which the section provided for the recovery of the taquavi arrears. Therefore when judicial discretion is provided to this high statutory officer like the Collector it would depend on the fact and circumstances of each case as to what coercive process he should adopt. Miss Shah has not brought on record the application for execution or orders which has been issued by the Collector and she has contented herself by merely challenging the vires of these provisions. Therefore whether on the particular facts of the case the coercive process of arrest was justified and the authority had properly exercised the discretion vested in him could have never be questioned only by the argument at the time of hearing without laying out any foundation for this contention.
4. Finally, Miss Shah raised a surprising contention of there being repugnancy between Section 103(b) of the Act and Section 47 and the execution procedure under the Civil Procedure Code. Article 254 or the corresponding provisos of the Government of India Act could only apply where there was repugnancy between the Central and the State enactments in a matter with respect to the concurrent list. The present Act is a complete Code regarding the co-operative societies which would fall in Entry 32 of List II of the VIIth Schedule. Therefore merely because the existing code regarding the co-operative societies enacted by the State legislature independently makes provision by creating it sown forum of arbitration for resolving its own forum of arbitration for resolving a dispute and for execution for the awards and such orders, it could not be said to a legislation which is in pith and substance with regard to the mater in the concurrent List III. Besides, the provisions for execution by way of Land Revenue Code are in addition to the execution remedy under the Code because the order in such cases is by fiction under Section 103(a) treated as a decree of the Civil Court. Therefore, this contention has been raised under a complete misconception.
5. At the end Miss Shah made an attempt to urge the case of mala fides. There was merely an allegation that as the petitioner was likely to contest the election of the Presidentship of the Municipality to break down the morals of his supporters and to move the petitioner from the scene of the contest the Director of Co-Operative Societies Motibhai Joshi had approached the Collector and had pressed him to resort to this coercive action. This allegation of mala field is wholly misconceived. The Collector is bound to exercise his judicial discretion when he is moved by an application for executing such order under Section 103(b) of the Act for coercive recovery under the Code. There was no question of any mala fides when the petitioner had defalcated large amounts for which he was ultimately held liable. It hardly lies in his mouth to say that the order to drive him out of the contest this mala fide action was taken. The authority had judicially exercised discretion and no ground has been made out which would justify any challenge to the impugned order:
6. In the result no ground whatever has been made out by the petitioner which would justify and interference with the arrest warrant issued by respondent No. 3. This petition, therefore fails and is dismissed. Rule is discharged with no order as to costs in the circumstances of the case.
7. Petition dismissed.