S.A. Shah, J.
1. Petitioner Smt. Prabhavatiben is the widow of Chandrashanker Narmadashanker Trivedi, who had taken loan from the Gota Group Seva Sahakari Co-operative Society Limited (hereinafter referred to as 'the Society'). Since the petitioner could not repay the amount of loan in time, the Society made an application to the Registrar of the Co-operative Societies, Sabarkantha at Himatnagar, under Section 106 of the Gujarat Co-operative Societies Act, 1961 (hereinafter referred to as 'the Act') for the issuance of Certificate. The District Assistant Registrar, Sabarkantha at Himatnagar, after making inquiry, issued Certificate dated 26-8-1976 (Annexure 'A' to the petition) holding that an amount of Rs. 11,198.42 paise by way of principal amount, Rs. 3,085.09 paise by way of interest, Rs. 124.55 paise by way of penal interest, and Rs. 3/- for notice fee, i.e. in all an amount of Rs. 14,411.06 paise, was due and payable by the debtor to the creditor, and directed that the said amount he realised by respondent No. 3-Society from the petitioner. In Clause 5 of the said Certificate it was further mentioned that the respondent No. 3-Society shall recover surcharge in accordance with the rules and regulations and credit the said amount in the Treasury.
2. Being aggrieved by the issuance of the said Certificate, the petitioner has filed this petition before this Court mainly on two grounds, viz.
(1) The certificate has been issued without holding inquiry as contemplated by Section 106 of the Act and therefore, it is in violation of principles of natural justice and void.
(2) Recovery Officer has recovered an amount of Rs. 1,590/- on 14-6-1977 from the petitioner, which is illegal and not authorised by law and, therefore, the said amount should be refunded.
3. In paragraph 7 of the petition, the petitioner has stated that the recovery certificate issued is for the total amount of Rs. 14,411.06 paise, and against that amount, the petitioner has paid an amount of Rs. 15,805.31 paise on the dates mentioned therein. The amount of Rs. 1,590 recovered from the petitioner by way of surcharge appears to have been included in the total amount of Rs. 15,805.31 paise. Mr. N.R. Tandel, learned Advocate for the petitioner, is not in a position to say definitely that this amount of Rs. 1,590/- is not included in the said amount of Rs. 15.805.31 paise. However, his contention is that the petitioner has paid full amount under the Certificate and that she has paid Rs. 1.590/- by way of surcharge.
4. Respondent-Society has not filed any affidavit and has not denied the averment of para 7 of the petition. Special Recovery Officer, Co-operative Societies, Himatnagar, Shri Kantilal P. Desai, has filed affidavit-in-reply, and in para 4 thereof he has stated that the Society informed the Special Recovery Officer that dues were recovered and accordingly auction was postponed. There is no specific denial to the averments made in para 7 of the petition. In absence of any other evidence on record, and the fact that the petitioner has in specific terms stated that she has paid the amount shown in the Certificate (Annexure 'A'), the contention of the petitioner that nothing remains due and payable by her under the Certificate shall have to be accepted. Mr. R.N. Shah, learned Advocate for respondent No. 3-Society is also not in a position to assist the Court in this behalf.
5. In view of the fact that the amount has been paid, and the dues under the Certificate having been totally discharged, it will be futile to consider whether the Certificate was issued after proper inquiry or not. However, in para 2 of the affidavit-in-reply it has been in terms stated that before the issuance of the Certificate by the Asstt. District Registrar, notice was given, and necessary inquiries were made. There is no reason not to accept this part of the affidavit-in-reply. Therefore, the first contention of Mr. Tandel requires to be rejected.
6. Mr. Tandel has submitted that in any view of the matter, the petitioner having paid the full amount, attachment and other coercive steps taken by the respondents should be withdrawn. In my opinion, that is a necessary consequence. The petitioner has been found to have paid the full amount and, therefore, all coercive steps taken by the Special Recovery Officer shall have to be withdrawn.
7. The next contention of Mr. Tandel is that the amount of Rs. 1,590/-recovered by way of surcharge from the petitioner by the Special Recovery Officer is unauthorised and illegal. In this behalf, respondent No. 1 Special Recovery Officer has in para 5 of his affidavit-in-reply stated that the amount of Rs. 1,590/- as surcharge has been recovered in accordance with the letter dated 19-4-1969 issued by the Registrar of Co-operative Societies, Gujarat State and has craved leave to refer to and rely upon the same. Miss K.N. Valikarimwala, learned Assistant Government Pleader, for M/s. Bhaishanker Kanga and Girdharlal, for respondent No. 5, was directed to produce the said letter, which she has produced. It is dated 29-4-1969 (and not 19-4-1969 as stated in the affidavit-in-reply). It refers to a Circular dated 25-5-1955 issued by the Registrar of Co-operative Societies. Bombay State, Poona. I will, therefore, refer to the said circular to find out whether any such levy of surcharge can be culled out therefrom.
8. The said Circular regarding surcharge has been issued under Rule 39-A or the Bombay Co-operative Societies Rules, authorising the Registrar to levy surcharge at a scale not exceeding in the aggregate 10 per cent of the amount of the dues, where the establishment of Special Recovery Officers is not self-supporting. The Rules framed under the Bombay Co-operative Societies Act have been repeated by Rule 141 of the Gujarat Co-operative Societies Rules. 1965. Miss Valikarimwala is not in a position to point out from the Gujarat Rules any rule corresponding to Rule 39-A of the Bombay Rules.
9. Mr. R.N. Shah, learned Advocate for respondent No. 3 - Society, has tried to support the power of the Registrar to levy surcharge by referring to Section 106 of the Act. Under the scheme of the Act, a Creditor-Society can recover dues by raising a dispute under Section 96 which is referred to the Registrar for his decision which may be heard by the nominee or Board of Nominees, which is subject to appeal, review, revision, etc. Section 103 of the Act provides that every order passed by the Registrar or a person authorised by him under Section 93, or by the Registrar, his nominee or Board of Nominees under Section 100 or 101, and every order passed in appeal under Section 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, if not carried out, 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 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.
10. So far as recovery of crop loans and other advances is concerned, Section 106 of the Act provides speedy remedy. Notwithstanding the provisions contained in Sections 96, 98 and 103 of the Act, if an application is made by such creditor-society and statement of accounts in respect of the arrears is furnished, the Registrar may, after making such inquiries as he deems fit, grant a certificate for the recovery of the amount stated therein to be due as arrears. Such a certificate granted by the Registrar under Section 106(3) of the Act shall be final and a conclusive proof of the arrears stated to be due therein, and shall be recoverable according to the provisions of the Land Revenue Code and the Rules thereunder for the time being in force for the recovery of land revenue. It is, therefore, evident that Sub-sections (1), (2) and (3) of Section 106 of the Act provide speedier machinery for crop loans and similar loans given by the credit society, and the Certificate given by the Registrar after due inquiry has been given a status of conclusive proof of the arrears stated to be due therein, which is also recoverable like the arrears of land revenue.
11. Mr. R.N. Shah, however, relies upon Sub-section (4) of Section 106 of the Act to show that the Registrar has power to levy surcharge, it reads:
106(4). It shall be lawful for the Collector and the Registrar to take precautionary measures authorised by Sections 140 to 144 of the Land Revenue Code, until the arrears due to the society together with interest and any incidental charges incurred in the recovery of such arrears, are paid, or security for payment of such arrears is furnished to the satisfaction of the Registrar.
Mr. R.N. Shah has pointed out that the Collector and the Registrar has the power to award incidental charges incurred and, therefore, the surcharge which has been levied is nothing but the incidental charges authorised by Sub-section (4) of Section 106 of the Act.
12. In my opinion, this argument of Mr. Shah is totally misconceived. First of all, Sub-section (4) of Section 106 of the Act is a provision of recovery by taking precautionary measures ax authorised by Sections 140 to 144 of the Land Revenue Code. This would necessarily mean that these precautionary measures are to be taken subsequent to the issuance of the Certificate. Secondly, incidental charges which can be awarded are incidental charges which are actually incurred by the creditor and that too, the same are to be awarded to the creditor and not to the Government. Since the charges are to be recovered on actual basis, there is no mention of any percentage. In my opinion, therefore, Sub-section (4) of Section 106 of the Act nowhere gives any authority or power either to the Collector or the Registrar to levy any surcharge for the benefit of Government. Even if this point is seen from the Government point of view, Rule 39-A of the Bombay Rules under which Circular dated 25-5-1955 was issued by Bombay State for recovery of surcharge has been repealed by Rule 141 of the Gujarat Rules and, therefore, the said Circular loses all its potency. The said Circular also stood repealed alongwith the Bombay Rules and the same cannot be utilised by the Government of Gujarat for levy of any surcharge.
13. Mr. Tandel has relied on the decision of this Court (J.B. Mehta, J.) in Special Civil Application No. 1870 of 1972, decided on 10-2-1977. In that case, the petitioner-society challenged the order of the respondent-authorities seeking to recover the surcharge over the arbitration award amount as being ultra vires levy without any authority of law. Since in that case there was an award, the certificate signed by the Registrar under Section 103 of the Act was deemed to be a decree. It has been observed therein:.The recovery application under the proviso, if made to the Collector, has to be accompanied by a certificate signed by the Registrar, Therefore, so far as Section 103 is concerned, it does not provide any further thing. The surcharge was sought to be levied under a circular dated May 25, 1966 (it should be May 25, 1955), Annexure J, by the State Government which provides for such charge on arbitration cases on a varying scale. The authority of law for this circular was said to be rale 39-A of the Bombay Co-operative Societies Rules, 1927, when the recovery would be under the corresponding provisions of Section 59 of the old Act. That Rule 39-A provides that when recovery was made under Section 59 in execution of any order referred to in the said section, and the property is not sold in such execution, the Registrar may order the expenses of such recovery to be paid by any party in default according to a scale laid down by him not exceeding in aggregate 10 % of the amount of the dues. At that time Section 59 of the old Act was the similar provision corresponding to Section 103. Those rules have now, however, been repeated by the Gujarat Co-operative Societies Rules, 1965, and Mr. Takwani was unable to point out any such provision corresponding to Rule 39-A. Rule 141 of the new rules has repealed the old rules and had saved only the action taken in so far as it was inconsistent with the new rules. When the new rules do not provide for any such surcharge, the circular dated May 25. 1966 (1955) completely lacks any authority of law. In that view of the whole legal position the authorities were bound to execute the co-operative forum's award as a decree of the Civil Court or according to the provisions of the land revenue Code and the Rules for the recovery of arrears of land revenue without charging any such surcharge. Therefore, this additional surcharge to the extent of 4%, which is now sought to be recovered from the petitioner-society by threatening coercive process as per letter. Annexure T could never be recovered as it is completely without any authority of law.
In the instant case, as observed by J.B. Mehta, J., originally surcharge was leviable when recovery is to be made under Section 59. which is similar to Section 103 of the Gujarat Act. By no stretch of imagination such provision can be made applicable to Section 106 of the Act. However, the State Government relies upon the Circular of 1955 for its power. In my opinion, the said Circular of 1955 will not be available to Government for any purpose because on repeal of the Bombay Rules the said Circular also stood repealed. In that view of the matter, the action of the Recovery Officer in recovering an amount of Rs. 1,590/- as surcharge by coercive method was illegal and not authorised by law and, therefore, the said amount requires to be refunded to the petitioner.
14. In the result, the petition succeeds. The Recovery Officer is directed to withdraw all the coercive steps taken by him against the petitioner for recovery of the dues under Certificate (Annexure 'A') since the same have been fully satisfied, and respondents Nos. 3, 4 and 5 are also directed to refund the amount of Rs. 1,590/- recovered from the petitioner as surcharge to the petitioner. Rule is made absolute with costs.