THAKORBHAI L PATEL Vs. ASSISTANT DISTRICT

JUDGEMENT

(1.) The petitioners are the sons of one Shri Laxmanbhai Dahyabhai Patel, who was the Chairman of Min Kuchcha Seva Sahakari Mandali Limited. Said Shri L. D. Patel died on 2-11-1984 and as the petitioners have inherited the ancestral properties of H.U.F., they have filed the present petition challenging the orders passed by the Liquidator produced at Annexure 'B' and also the order of dismissal of Appeal No. 47 of 1987, at Annexure 'C' and also the judgment dated 4-7-1987 passed in Revision filed under Sec. 155 of the Gujarat Co-operative Societies Act, 1961 (hereinafter referred to as "the Act").

(2.) It is the case of the petitioners that the District Registrar on perusing the audit report for the period from 1-4-1976 to 3-6-1977 and the Special Report of the Auditor, appointed one Shri M. S. Mangela to hold inquiry under Sec. 86 of the Act. Said Shri Mangela submitted his report to the concerned authority. In the said report it was found by Shri Mangela that the Secretary of the Society Shri Rambhai Ukabhai was in-charge of the stock of the society and the keys of the shop of the society were remaining with him, and therefore, he was liable for the loss of stock amounting to Rs. 70,501-24 paise. It was also stated in the said report that the Secretary is only liable for Rs. 50-00 and Rs. 256-00 respectively for the stock of baskets and empty oil tins. It was also stated in the report that for not counting the interest amount of Rs. 2888-57 paise, the Secretary and the members of the Executive Committee are liable and that the society should take necessary steps for recovering the amount due from the members of the society and in the end it was held by the inquiry officer that for amount of Rs. 350.00 as the inquiry fees the Secretary of the Society, Shri Rambhai Ukabhai is liable for half amount, i.e., Rs. 175.00 and all the members of the Executive Committee for the year 1976-77 are liable for the remaining amount of Rs. 175.00 severally and jointly. It was urged by Shri Naik, learned Advocate for the petitioners that it is clear from the report of the Inquiry Officer that the deceased L. D. Patel was not responsible for loss of any amount to the society. A copy of the report is annexed at Annexure 'A' to the petition.

(3.) The District Registrar, Co-operative Societies, having felt that the society is not economically viable, had passed an order dated 19-10-1981 for taking the society into liquidation and appointed a Co-operation Officer (Liquidation) as Liquidator of the society under Sec. 107 of the Act. After the Liquidator was appointed, the Liquidator issued notice dated 3-5-1982 to deceased L. D. Patel under Sec. 110 of the Act to deposit an amount of Rs. 8039-78 paise with interest and to deposit Rs. 803-97 paise as liquidation charges and Rs. 0-40 paise as notice charges within 15 days under Sec. 110 of the Act. It is contended by Shri Naik, the learned Advocate for the petitioners that the Liquidator had not issued any notice before directly issuing the notice to deposit the amount. Nor did he held any inquiry in the matter. Hence, the action of the Liquidator is vitiated on account of violation of principles of natural justice and the same is required to be quashed and set aside by this Court. It is also stated by Shri Naik that the Liquidator once again issued notice dated 16-2-1983 informing the father of the petitioners that the Secretary and the members of the Managing Committee of the year 1976-77 are liable for the amount of Rs. 80,397-93 paise being an amount of misappropriation including misappropriation of the stock and loss to the society. It is also mentioned in the said notice that the Secretary and the members of the Managing Committee are liable for the said amount personally and jointly. The Liquidator also recommended to the District Registrar, Co-operative Societies, Valsad to issue necessary certificate to recover the said amounts as arrears of the land revenue and to that effect an order came to be passed which is the impugned order at Annexure 'B' to this petition. It is also submitted that thereafter the District Registrar issued a certificate to recover the said amount as arrears of land revenue and the same is forwarded to respondent No. 3-Special Recovery Officer to the District Collector, Valsad. The respondent No. 3 then started proceedings to recover the said amount as arrears of the land revenue and issued notices to the deceased Laxmanbhai Dahyabhai Patel and after his death notices were issued to the petitioners. The petitioners challenged the notices issued by the Special Recovery Officer before the District Collector, Valsad, who by an order dated 24-2-1986 held that the order of the Liquidator is illegal and the said order cannot be passed without following the procedure prescribed under Sec. 93 of the Act. It is important to note that the Collector further held that, "the Collector has no jurisdiction to hear the appeal" and directed the petitioners to file an appeal before the Registrar, Co-operative Societies, Gujarat State and granted relief of restraining the Special Recovery Officer from recovering the amount in question by way of arrears of land revenue.