JETHMAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THESE are two appeals under the Rajasthan Cooperative Societies Act, 1953, against two orders passed by the Assistant Registrar, Cooperative Societies Pali on 22. 5. 1963 and 3. 1. 1964 under sec. 69 of that Act. Since these two appeals involve common points of law, they are being disposed of together by this single judgment. In the case of Jethmal, the facts are that a requisition was sent by the Cooperative Extension Officer, Panchayat Samiti Bali to the Assistant Registrar Pali for the recovery of a total amount of Rs. 4816. 50 n. P. on 19. 5. 1963. The Assistant Registrar thereupon proceeded to issue an order under sec. 69 of the aforesaid Act on 22. 5. 1963 asking Jethmal appellant to pay up the amount mentioned in the requisition. On receipt of the above said order Jethmal raised certain objections which are still under the consideration of the Assistant Registrar. The requisition sent by the Assistant Registrar clearly shows that the amount of Rs. 4816. 50 np. is due from a defaulting member Ratan Singh who is dead. Jethmal was his surety. In the case of Mohammad Hanif appellant, the facts are that on 11. 10. 1963 the Vikas Adhikari Panchayat Samiti Pali forwarded a resolution of Shri Ganga Charan Utpadak Sahakari Samiti Limited Bisalpur, to the Assistant Registrar where in it was stated that an amount of Rs. 15765. 37 n. P. was due from Mohammad Hanif, a member of the Society. On 3. 1. 1964 the Assistant Registrar issued an order under sec. 69 of the aforesaid Act requiring Mohammad Hanif to pay up this amount, failing which recovery would be made under sec. 67 of the aforesaid Act. Mohammad Hanif objected to this demand and his objections also is still under the consideration of the Assistant Registrar. Both the impugned orders are on a cyclostyled form and are couched in the same language. The learned counsel for the appellants has urged that no due enquiry was made by the Assistant Registrar before he issued the impugned orders, and that in this sense these orders are not maintainable. The learned Government Advocate has urged that the impugned orders are only notices to the two appellants, and that these two ap> peals are premature. This objection has no merit at all. The order against Mohammad Hanif is produced below : *** The order in the case of Jethmal is not being reproduced because it is similar to the above cited order in the case of Mohammad Hanif. A plain reading of these orders shows that these are final orders made under sec. 69 of the aforesaid Act which is reproduced below : " 69. Power to direct payment of dues:notwithstanding anything contained in Chapter IX the Registrar or such other person as may be prescribed, may on his own motion or on the written requisition of a society or financing bank for the recovery of any loan due by a defaulting member after due enquiry, make an order directing payment by such member of the amount found to be due. " A plain reading of the impugned order and Sec. 69 makes it abundantly clear that the orders under appeal are nothing but orders under Sec. 69 of the Act, and not notices prior to orders under Sec. 69. The requirements of Sec. 69 are that the recovery of overdue loans may be ordered in the case of defaulting members after due enquiry. In the case of Jeth mal, one of the grounds urged in appeal is that he is not even a member, much less a defaulting member. The record shows that he is only a surety of Ratan Singh deceased who was a member of the society in question. Therefore, no order could be made against Jethmal under sec. 69 of the Act. The other objection urged in appeal which is common to both these cases is that no "due enquiry" has been made before the orders under sec. 69 were passed. This objection must also be upheld. No enquiry can be termed as a "due enquiry" until the person against whom an order of payment is made has had an opportunity of being heard. There was no enquiry by the Assistant Registrar, and neither Mohammad Hanif nor Jethmal was associated in any enquiry at any stage prior to the issue of the impugned orders. This militates against the principles of natural justice, apart from being violative of express provisions of sec. 69 which enjoins upon the officer passing the order to make a due enquiry before doing so. What has happened in these two cases is that the impugned orders were passed under sec. 69, and it was only then that the two appellants had the opportunity of coming up with their objections regarding their liability to pay the amounts demanded of them. THESE objections are only now being enquired into. This is a reversal of the process prescribed under sec. 69 of the Act, that is to say, the enquiry was to be made before passing the orders under sec. 69 and not subsequently. An order under sec. 69 is tantamount to a decree and should not be lightly passed because on the basis of the order recovery can be made through a Civil Court or through the Collector as an arrear of land revenue. There must be a "due enquiry'' in which the alleged defaulter is associated before an order of the rigour of sec. 69 is passed against him. In view of the foregoing discussion, we accept these two appeals and set aside the impugned orders. This would not prevent the Assistant Registrar from passing fresh orders after the objections of the two appellants have been duly enquired into. .