CHHOTALAL VANRAVAN KAKKAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner who was the manager of the opponent No. 2 Co-operative Society and also member of its managing committee was held to be liable jointly with others by the order of the Co-operative Tribunal dated September 19 1965 and was ordered to pay a sum of Rs. 25149-51 which had been defalcated. After the said liability was finally fixed in appeal the said award of the Tribunal was sought to be executed against the petitioner by coercive process under the Land Revenue Code as provided under sec. 103(b) of the Gujarat Co-operative Societies Act 1961 hereinafter referred to as the Act. As warrant of arrest was issued against the petitioner the petitioner has challenged the said coercive process by attacking the vires of the provisions of sec. 103 of the Act and secs. 157 and 158 of the Code as violating Article 14. The petitioner has also challenged the action of the Collector as he tried to follow this harsher procedure of coercive recovery without exhausting other processes. Sec. 103(b) was also attacked on the ground that it was also repugnant to the provisions of the Civil Procedure Code for recovery of such award which was deemed to be a decree. The petitioner has therefore on these grounds challenged the arrest warrant as violating his fundamental right in this petition. The District Registrar in his affidavit has stated that out of five delinquents the petitioner had not filed an appeal before the Tri unal. Therefore besides the original liability of Rs. 38753.63 fixed on the petitioner under sec. 93 along with the others additional liability of the petitioner was fixed in appeal at the sum mentioned by him. The certificate under sec. 103(b) was issued on December 7 196.7 and the Collector had been moved to recover this amount as arrears of land revenue. The warrant of arrest was issued under sec. 157 of the Code and sent to the P.S.I. for execution at Veraval but as the petitioner was not at Veraval the warrant could not be executed. It was also stated that all remedies were exhausted and as no other remedy was available the Special Recovery Officer had requested the Collector November 8 1968 to take action under sec. 157 of the Code. The attachment procedure could not be followed as no property of the petitioner could be traced. The respondents therefore tried to support the validity of the aforesaid warrant and have further contended that the aforesaid sections are intra vires.

(2.) Sec. 103 of the Act is as under :-

(3.) Even the question of vires of the scheme of secs. 150 157 and 158 of the Land Revenue Code is now concluded by the decision of the Division Bench consisting of myself and D. A. Desai J. in Special C. A. No. 266 of 1970 and others decided on December 7/9 1970 (M/s. Ramkrishnadas Durgaprasad v. State of Gujarat). D. A. Desai J. speaking for the Division Bench in terms followed the ratio of the host of authorities which we have mentioned earlier under which the Revenue Recoveries Acts were held to be intra vires when examined on the score of Articles 14 and 19 of the Constitution. including the decision of the Division Bench in Mahomed Hassein v. State III G.L.R. 666. It is true that the decision in Painter v. The Liverpool Oil Gas Light Company Vol. 4 Revised Reports page 423 had been followed. Chief Justice Lord Denman had observed under :-