THE HON'BLE Ms. JUSTICE G.ROHINI WRIT PETITION No. 6819 OF 2008 Dated: 27.09.2010 Between: Gandam Venkataswamy Naidu ..... PETITIONER AND The District Co-operative Officer, West Godavari District, Eluru and others .....RESPONDENTS The Court made the following : THE HON’BLE Ms. JUSTICE G.ROHINI WRIT PETITION No. 6819 OF 2008 ORDER: This writ petition is filed seeking a declaration that the notice in Form No.9, dated 01.03.2008 issued by the 2nd respondent proposing to sell the immovable property belonging to the petitioner by public auction proposed to be held on 31.03.2008, is arbitrary and illegal. Heard the learned counsel for both the parties and perused the material available on record. It is not in dispute that a surcharge order was passed on 16.11.1996 under Section 60 of the Andhra Pradesh Co-operative Societies Act, 1964 for restoration of a sum of Rs.7,52,000/- from the petitioner making him responsible for certain irregularities committed during his tenure as President of the 3rd respondent-society. The petitioner’s appeal before the Andhra Pradesh Co-operative Tribunal was dismissed and the said order was also upheld by this Court by order dated 06.01.2008 in W.P.No.22778 of 2000. Thereafter, the impugned notice came to be issued by the 2nd respondent proposing to sell the immovable property belonging to the petitioner for recovery of a sum of Rs.8,07,635/- allegedly due from the petitioner. Aggrieved by the same, the present writ petition has been filed contending that the impugned sale notice which was issued without giving credit to the substantial amounts already paid by the petitioner is arbitrary and illegal. It is also contended that the action of the respondents in straightaway issuing the sale notice without serving a demand notice as provided under Rule 52(11) of the Andhra Pradesh Co-operative Societies Rules, 1964 (for short, ‘the Rules’) is illegal being contrary to the mandatory procedure prescribed under Rule 52 of the Rules. A perusal of Rule 52(3) of the Rules makes it clear that an application shall be made by the decree holder in Form D indicating the property against which he intends to proceed for recovery of the amounts due. On receipt of such application, the Registrar has to verify the correctness and genuineness of the particulars set forth in the application with the records and prepare a demand notice in writing setting forth the name of the defaulter, the amount due and forward it to the sale officer. Sub-rule 11 of Rule 52 of the Rules further makes it clear that such demand notice shall be served or cause to be served upon the defaulter or upon some adult male member of his family at his usual place of residence. If the defaulter fails to pay the amount specified in the demand notice within the time allowed, the sale officer shall proceed to attach and sell or sell the property without attachment, as the case may be. It is alleged by the petitioner in this case that no such demand notice was issued before bringing the properties to sale under the impugned notice dated 01.03.2008. In the counter affidavit filed by the 2nd respondent, the said plea could not be disputed. However, it is contended that it is sufficient if a notice is issued in Form 9 proposing to bring the properties to sale under Rule 52(11)(e) of the Rules. On a careful consideration of the provisions of the statutory rules, I do not find any substance in the contention advanced on behalf of the respondents. On a combined reading of the Rules referred to above, it is clear that the sale notice under Rule 52 (11) (e) of the Rules should be preceded by a demand notice and the properties can be brought to sale only where the defaulter fails to pay the amount specified in the demand notice within the time allowed. As the said procedure has not been complied with, the impugned notice is hereby set aside and the Writ Petition is disposed of, leaving it open to the respondents to initiate fresh proceedings following due process of law. No costs. ___________ G. ROHINI, J Date: 27.09.2010 Ivd