Mata Deen vs State Of U.P. and Others

Hon''ble Abhinava Upadhya, J.—Heard Sri K.S. Tiwari, learned counsel for the petitioner whereas none is present on behalf of the respondents.

By means of writ petition, petitioner has challenged the auction sale notice dated 17.12.2003, alleged to be issued u/s 95-A of the U.P. Cooperative Societies Act. According to the petitioner auction sale notice could not have been issued by the Land Sale Officer of the U.P. Cooperative Sahkari Development Bank. Learned counsel appearing on behalf of the petitioner has drawn my attention to the provisions of Section 95-A which provides that:

Special provision for recovery of certain dues of agricultural society-(1) The Registrar may, on an application made by society referred to in Section 34 or an agricultural credit society for the recovery of arrears of any loan advanced by it or any installment thereof to any member and on its furnishing a statement of accounts in respect of such loan and after making such inquiries, if any, as he thinks fit, issue a certificate for recovery of the amounts due.

(2) A certificate issued by the Registrar under sub-section (1) shall be final and conclusive proof of the dues which shall be (executable u/s 92)

In view of the aforesaid, it is submitted that the recovery can be made only by the Registrar after giving opportunity to the petitioner of being heard. However from reading of the aforesaid impugned notice alleged to be issued u/s 95-A of the U.P. Cooperative Societies Act, it appears that it is only a demand that has been raised against the petitioner. But the fact remains that recovery proceedings can be initiated only by the Registrar or the other Delegated Authority as provided u/s 95 A of the said Act.

Learned counsel for the petitioner has relied upon a Division Bench judgment of this Court in Civil Misc. Writ Petition No. 3789 of 1976 (M/s. Ram Narain Himmat Ram and another Vs. Jalaun Kraya Vikraya Sahkari Samiti Ltd. Jalaun and others) decided on 29th November, 1976. In which this Court categorically stated in paragraph 5 that it is only Registrar or Delegated Authority who can proceed to recover the amount upon an application made by the Society. According to the petitioner, no such application has been made by the Society before Registrar or the Delegated Authority and the Land Sale Officer himself proceeded the recovery amount.

I have considered the submission made by learned counsel for the petitioner whereas none is present for the respondents nor counter affidavit has been filed in spite of direction given vide order dated 09.01.2004.

In view of the aforesaid facts and circumstances and in view of provision of section 95-A of the U.P. Cooperative Societies Act, the demand/ recovery/ auction sale notice dated 17.12.2003 passed by the Land Sale Officer of U.P. Sahkari Village Development Bank can not be sustained and it is hereby quashed. However, it is also not disputed that the petitioner had taken loan from the aforesaid Society and has also defaulted in payment of its dues. Therefore, it is always open for the society to proceed against the petitioner for recovery of the amount as provided under law for which they are at liberty to take fresh steps in accordance with law.

Subject to aforesaid direction, writ petition is allowed.