RADHA BALLABH TANDON Vs. CO
HIGH COURT OF ALLAHABAD
Radha Ballabh Tandon
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N.D.Ojha, J. -
(1.)The Recovery Officer. as defined under Rule 2(z)(aa) of the Uttar Pradesh Co-operative Societies Rules 1968, (hereinafter referred to as the Rules) issued a notice to the petitioner on 6th Oct., 1972 under Rule 312 (c) 0f Rules requiring him to pay the amount mentioned in the notice by 5th Nov., 1972. It was also stated in the said notice that in case of failure to make the payment by 5tn Nov., 1972, the amount shall be recovered by sale of movable and immovable properties of the petitioner. It is this notice which is sought to be quashed in the present writ petition.
(2.)It was urged by counsel for the petitioner that the Registrar of the Co-operative Societies purports to have taken steps under Sec. 91 of the U.P. Co-operative Societies Act (hereinafter referred to as the Act) for the recovery of the amount mentioned in the notice aforesaid which was without jurisdiction. In this connection, it was pointed out that two awards, copies whereof have been filed as AnnexuresAandBto the writ petition, had earlier been given under Sec. 71 of the Act ana since the amount which was sought to be recovered from the petitioner represented the amount under these awards, the only procedure available to the Registrar for its recovery was as contemplated by Sec. 92 of the Act.
(3.)Having heard counsel for the parties cs, we are of opinion that the impugned notice does not deserve to be quashed on this ground. Firstly, the impugned notice indicates that it has been issued under Rule 312 (c) of the Rules. This clause (c) prescribes the procedure to be followed by the Recovery Officer on receipt of such application refer to the applicant which has to be made by the decree holder under clause (a) of Rule 312. It contemplates that every decree-holder requiring execution of an award or order under the provisions of clause (b) of Sec. 92 shall apply to the Recovery Officer having jurisdiction over the area in which the judgment-debtor resides or has property-Clause (b) of Rule 312, inter alia, contemplates that the application shall be made in the form specified by the Registrar. It has not been disputed by counsel for the petitioner that even if his submission is accepted, it is sub Sec. (b) of Sec. 92 of the Act which would be applicable for the recovery of the amount in question. The notice having been issued under Rule 312 (c) apparently indicates that it was issued treating the proceedings to be for execution of the amount payable under an award as contemplated by Sec. 92 (b) of the Act. What was, however, urged by counsel for the petitioner in this behalf was that the application which was made by the Registrar had actually been made under Sec. 91 of the Act and not under Sec. 92 (b) of the Act. So far as this submission is concerned, suffice it is say that it has not been disputed by learned counsel for the petitioner and indeed it is apparent fro m the notice Annexure C itself that the amount mentioned in the said notice is to be recovered by sale of petitioners property. Sec. 29 (b) provides that amount under an award may be executed by the Registrar or any other person subordinate to him and empowered by him in this behalf by attachment and s dorsal without attachment of any property of the person against whom the award has been made. In Vice-Chancellor, Jammu University and another Vs. Dushinant Kumar Rampal (AIR 1977 SC 1146) it was held that where an authority makes an order which is other lies within its competence it cannot fail merely because it purports to be made under a wrong provision of law, if it can be within it powers under any other provision; a wrong label cannot vitiate an order which is otherwise within the power of the authority to make. In our opinion, on the same principle where an authority makes an order which is within its competence it cannot tail merely because the party invoking the jurisdiction of such authority has quoted a wrong provision of law in its application.
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