Paras Ram vs Union of India and Others

This petition under Arts. 226 and 227 of the Constitution of India has been filed by Shri Paras Ram, a former Secretary, Indira Gram Sewa Co-operative Society, Village Kuthera, Tehsil Ghumarwin, District Bilaspur, Himachal Pradesh for the issue of appropriate writ, order or direction, quashing the recovery proceedings commenced against him for the recovery of a sum of Rs. 10,509.06 with costs (Rs. 13,192.31 in all) being the amount of an award dated 26th June, 1966 made against him, by the District Co-operative and Supplies Officer under the provisions of the Himachal Pradesh Co-operative Societies Act, 1956, (Act 13 of 1956), hereinafter referred to as the ''Act''.

According to his allegations, the petitioner while working as the Secretary of the Indira Gram Co-operative Society Limited, Respondent No. 6, incurred the displeasure of the Co-operative Inspector as a result of which he was involved in a charge of embezzlement of the funds of the society. These charges were not admitted, as according to him, nothing was due from him. The dispute, as the petitioner''s liability towards the society was referred to the Registrar, Co-operative Society, Himachal pradesh, simla, respondent No.2, u/s 87 of the said Act, who in turn appointed the District Co-operative and Supplies Officer, Bilaspur, respondent No. 3, to act as the Arbitrator, u/s 88 (b) of the Act. On 26th June, 1966, respondent No 3 gave his award by which he directed the petitioner to pay a sum of Rs. 10,509.06 with costs (a total of Rs. 13,192.31) to the Indira Gram Co-operative Society Limited, respondent No. 6. The petitioner filed an appeal u/s 113 of the Act but the same was rejected. A revision u/s 114 of the Act filed by the petitioner was likewise rejected on February 8, 1967, by the Lieutenant Governor, Himachal Pradesh. In April 1967, the District Co-operative and Supplies Officer, Bilaspur, on further representation made by the petitioner is alleged to have assured him that the matter would be again looked into provided he paid a sum of Rs. 2,000 provisionally. This sum of Rs. 2,000 was paid by the petitioner, but nothing substantial seems to have been done thereafter.

The Collector, Bilaspur, respondent No. 4 has now started proceedings for recovery of the award amount under Sections 100 and 101 of the Act, read with Rule 92 of the Himachal Pradesh Co-operative Societies Rules, hereinafter referred to as the ''Rules''. The papers have been transmitted to Tehsildar, Tehsil Ghumarwin, District Bilaspur, for effecting the recovery of amount detailed in the award as arrears of land revenue, who, according to the petitioner, is about to realise the amount by coercive process.

The petitioner has by this petition challenged the constitutional validity of the provisions of the Act and the Rules, prescribing the method and mode of recovering the amount of the award. The award of the arbitrator made under the Act, if not carried out, in a certificate signed by the Registrar, is deemed u/s 100 of the Act, to be a decree of the Civil Court and has to be executed in the manner as provided in Section 101 according to which, the recovery is to be made in the manner provided in the First Schedule to the Act.

The relevant provisions prescribing the method of recovery are contained in the entry at Serial No. 3 of the First Schedule of the Act, which read as follows:-

"By the Collector as arrears of Land Revenue upon requisition by the Society

or

By any Civil Court having local jurisdiction, in the same manner as a decree of such Court, upon application by the Society."

The method of recovery by the Collector as arrears of land revenue is given in Section 74 and other relevant sections of the Himachal Pradesh Land Revenue Act. 1953, hereinafter referred to as the ''Revenue Act''.

According to the learned counsel for the petitioner the two alternative modes of recovery provided by the Act and the Rules, one being under Procedure Code, invest the authorities with arbitrary powers to select one or the other mode of recovery. No guiding principles have been prescribed for making the choice. The provisions of the Act and the Rules regarding recovery are Therefore illegal, ultra vires, and unconstitutional. Section 101 of the Act read with entries at Serial No. 3 of Schedule I of the Act and also Rule 92 of the Rules, according to the learned counsel, suffer from the infirmity of excessive delegation of power.

According to the learned counsel the mode of recovery under the Act is very harsh as compared to the recovery through the civil Court under the Civil Procedure Code. In proceedings under the Civil Procedure Code, the judgment-debtor can raise objections regarding execution, discharge or satisfaction of the decree u/s 47, Civil Procedure Code; and is entitled if the execution application is made more than one year after the date of decree to a notice providing him with a change to raise objections if any, under Rule 22 read with Rule 23(2) of Order 21, Civil Procedure Code, and can also take advantage of the law of limitation which prescribes the period of limitation of twelve years for executing a decree. No such facilities are available to him when recovery is made under the Revenue Act. The aggrieved defaulter is also deprived of the benefit of trial by ordinary Courts administering ordinary law; and would be subjected to the jurisdiction of the Revenue Courts instead. The learned Counsel for the respondent submits that u/s 84 of the Revenue Act, the defaulter, if he denied his liability and pays the amount demanded under protest made in writing at the time of payment, also has the right to institute a suit in a civil Court for the recovery of the amount so paid. But the right so given is clearly illusory, and disadvantageous to the defaulter concerned, when it is borne in mind that he is required to pay the full amount before he can file the suit, where recovery can be claimed by him only after paying heavy court-fees. According to the learned counsel for the petitioner, the recovery provisions, Therefore, infringe Article 14 of the Constitution of India inasmuch as a person like the petitioner proceeded against in the manner of the recovery of arrears of land revenue may be discriminated against as compared to another person against whom proceedings may be taken under the alternate provisions of the Civil Procedure Code. It is in these circumstances that the learned counsel urges that the recovery proceedings stated against the petitioner should be ordered to be quashed.

The language of entries against Serial No. 3 in the First Schedule to the Act do vest the Co-operative Society with the unrestricted discretion to apply either to the Collector for effecting recovery as arrears of land revenue or to apply to the civil Court having local jurisdiction in the matter to recover the amount in the same manner as a decree of such court. The Act gives no guidance in the matter of treating any given case in one manner or the other. It has been left completely to the uncontrolled arbitrary choice of the society concerned.

It has been repeatedly held that all persons who are similarly situated are entitled to avail themselves of the same rights for relief or for defense and to enjoy like protection without discrimination. Even a rule of procedure comes as much within the purview of Article 14 of the Constitution, as the rules of substantive law. The learned counsel has referred to Suraj Mall Mohta and Co. Vs. A.V. Visvanatha Sastri and Another, , State of Orissa v. Bhirendranath Das, Air 1961 Sc 1715 and Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, , in support of his contention that if a law provides differential treatment amongst persons similarly situated, it violates the equality clause of Article 14 of the Constitution of India. The case of Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, dealt with the provision of Punjab Public Premises and land (Eviction and Rent Recovery) Act (31 of 1959). The legislature, by the said enactment provided an additional remedy to the Government which was thought to be speedier than the one by way of a suit under the ordinary law, for the purpose of ejecting unauthorised occupants of Government premises. It was argued that persons occupying Government premises from a class by themselves as against those who occupy private owned properties. Such classification was sought to be justified on the ground that a differential treatment was required in this case in public interest. But it was urged that all those who fell under one classification were entitled to equal treatment among themselves; and as the impugned act provided an additional remedy to the Government and no guiding principles were laid to select one procedure or the other the act was declared to be bad. Shelat J., speaking for the majority observed:-

"Assuming that persons in occupation of Government properties and premises form a class by themselves as against tenants and occupiers of private owned properties and that such classification is justified on the ground that they require a differential treatment in public interest, those who fall under the classification are entitled to equal treatment among themselves. If the ordinary law of the land and the special law provide two different and alternative procedures, one more prejudicial than the other, discrimination must result if it is left to the will of the authority to exercise the more prejudicial against some and not against the rest. A person who is proceeded against under the more drastic procedure is bound to complain as to why the drastic procedure is exercised against him and not against the others, even though those others are similarly circumstanced. The procedure under S. 5 is obviously more drastic and prejudicial than the one under the CPC where the litigant can get the benefit of a trial by an ordinary Court dealing with the ordinary law of the land with the right of appeal, revision, etc., as against the person who is proceeded against u/s 5 of the Act as his case would be disposed of by an executive officer of the Government, whose decision rests on his mere satisfaction, subject no doubt to an appeal but before another executive officer, viz., the Commissioner. There can be no doubt that S. 5 confers an additional remedy over and above the remedy by way of suit and that by providing two alternative remedies to the Government and in leaving it to the unguided discretion of the Collector to resort to one or the other and to pick and choose some of those in occupation of public properties and premises for the application of the more drastic procedure under S. 5 that section has let itself open to the charge of discrimination and as being vocative of Article 14. In this view, S. 5 must be declared to be void."

The learned counsel for the respondent submitted that equal protection of laws cannot be said to have been denied merely because the Co-operative Society has been given the option of proceedings against the defaulter either by an application to the Collector or by applying to the Civil Court. The defaulter cannot be given a position to dictate that the society should have no choice of the proceedings. As the procedure for the recovery of the arrears of the land revenue was speedier than the resort to the civil Court, there was no likelihood of the Co-operative Society ever going to the civil Court. The discrimination alleged was, Therefore, unreal and fanciful. In fact the learned counsel adopted the arguments which had appealed to Bachawant, J., who wrote the minority judgment in the Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, .

But in the light of the views expressed by the majority of the Judges of the Supreme Court as contained in the observations of their Lordship cited above, the contention of the learned counsel for the respondent cannot be accepted.

It is thus clear that Section 101 of the Act read with entry at Serial No. 3 of Schedule I of the Act as also Rule 92 of the Rules confer upon the Co-operative Societies unrestricted and unguided arbitrary discretion to resort to one or the other method of recovery against the defaulter and thereby to pick and choose some to them for the application of the more drastic procedure under the Revenue Act. The said provisions, Therefore, do provide differential treatment for persons similarly situated and thus being discriminatory in character violate the right of equality guaranteed by Article 14 of the Constitution. The said provisions must, Therefore, be declared to be void.

In the result the recovery proceedings started against the petitioner by the respondent under the aforesaid provisions is quashed. There shall, however, be no orders as to costs.

Petition allowed.