Gurbachan Singh Vs. the Government of Punjab and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....order1. this petition under articles 226 and 227 of the constitution of india, is directed against the writ of demand dated 21st june, 1972, (annex. 'a') issued by the assistant registrar, co-operative societies, ferozepur, exercising the powers of assistant collector 1st grade, under the punjab land revenue act.2. it is stated that respondent no. 3 which is a co-operative society, raised a dispute against the petitioner, which was referred by the registrar, co-operative societies, to an arbitrator, for decision. the arbitrator gave an award against the petitioner, but the date on which this award was given has not been mentioned in the petition. the petitioner did not file any appeal or revision against this award and the same has become final. it is submitted, however, that section 63.....

Judgment:
ORDER

1. This petition under Articles 226 and 227 of the Constitution of India, is directed against the writ of demand dated 21st June, 1972, (Annex. 'A') issued by the Assistant Registrar, Co-operative Societies, Ferozepur, exercising the powers of Assistant Collector 1st Grade, under the Punjab Land Revenue Act.

2. It is stated that respondent No. 3 which is a Co-operative Society, raised a dispute against the petitioner, which was referred by the Registrar, Co-operative Societies, to an arbitrator, for decision. The arbitrator gave an award against the petitioner, but the date on which this award was given has not been mentioned in the petition. The petitioner did not file any appeal or revision against this award and the same has become final. It is submitted, however, that Section 63 of the Punjab Co-operative Societies Act. (hereinafter referred to as 'the Act'), is violative of Article 14 of the Constitution inasmuch as at least three modes of execution of an award have been provided by the statute, and at the same time, no guidance has been given to the authority concerned to adopt one or the other mode of execution. Section 63 of the Act runs as under:--

'63. Execution of certain decisions awards and orders--Every decision, award or order duly passed under Sections 54, 56, 62, 68 or 69 shall, if not carried out-- (a) on a certificate signed by the Registrar or any person authorised by him in this behalf, be deemed to be a decree of a Civil Court and shall be executed in the same manner as decree of such Court; or

(b) be executed by the Registrar or any other person subordinate to him, empowered by the Registrar in this behalf, by the attachment and sale or by sale without attachment of any property of the person or of the co-operative society, against whom the order, decision or award has been obtained or passed; or

(c) be executed according to the law and under the rules for the time being in force for the recovery of arrears of land revenue:

Provided that an application for the recovery of any sum in the last aforesaid manner shall be made to the Collector and shall be accompanied by a certificate signed by the Registrar or any person authorised by him in this behalf.'

A reading of Section 63 shows that on the basis of an award given against a defaulter, the Registrar, Co-operative Societies, can issue a certificate that can be executed as a decree of a Civil Court. Secondly, the Registrar Co-operative Societies or any other person subordinate to him, can be empowered to attach the property of a defaulter and sell in is execution of the award. Thirdly, an award can be executed according to the law and under the rules for the time being in force for the recovery of the arrears of land revenue. In short, three separate modes of execution have been provided by the law. In one case, the certificate issued by the Registrar can be executed by a Civil Court as its own decree. In that event, the Civil Court will be bound to hear objections raised before it under Section 60 of the Code of Civil Procedure. When such an award has to be executed by the Registrar, Co-operative Societies, or by an officer empowered by him, then though the property of the defaulter can be attached and sold, yet there is no provision for hearing objections regarding the sale of residential house of the defaulter. Further, when the amount is being recovered as arrears of land revenue, the defaulter can be put in civil prison, if he fails to make payment of the amount mentioned in the writ of demand. There is no indication in Section 63 of the Act of the circumstances under which the Registrar, Co-operative Societies, may adopt one or the other mode of the execution of the award. In short, the Registrar, Co-operative, Societies, can discriminate against a defaulter at his own sweet will. It is a settled law that protection of Article 14 of the Constitution is also available against procedural laws as well. Under these circumstances, Section 63(b) and (c) of the Act deserves to be struck down as violative of Art. 14 of the Constitution.

3. The learned counsel for the respondents has drawn my attention to Sant Sadhu Singh v. The State of Punjab, AIR 1970 Punj & Har 528. In that case, the rights of the secretaries and the treasurers of the Co-operative Societies, available to them under the amended Act had been taken away by a subsequent amendment of the Act. It was argued that the denial of these rights to the secretaries and the treasurers of the Co-operative Societies was hit by Arts. 14 and 19 of the Constitution of India. This contention was repelled by a Division Bench of this Court on the basis of Article 31A of the Constitution. In the instant case, the rights of the secretaries and the treasures as such are not taken away. So the protection of Article 31A of the Constitution is not available to the statute. Section 63 of the Act, as mentioned above, lays down the mode of execution of an award against the defaulters of a Co-operative Society. Such a provision has to conform to the mandatory provisions of Article 14 of the Constitution before any action can be taken under it. The objection taken on behalf of the respondents is consequently over-ruled.

4. The learned counsel for the respondents, then relied on Indu Bhushan Gupta v. State of U.P., AIR 1972 All 557. With great respect of the learned Judges who decided this case, I am not impressed with the reasoning adopted by them.

5. For the reasons mentioned above, this petition deserves to succeed and I order accordingly and direct that Section 63(b) and (c) of the Act be struck down as opposed to Article 14 of the Constitution. No costs.

6. Petition allowed.