Bombay High Court
Buldhana Zilla Dudh Utpadak ... vs State Of Maha., Thr.Secty, ... on 17 June, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.4974 OF 2014
Buldana Zilla Dudh Utpadak Sahakari
Sangh Maryadit, Buldana,
through its Managing Director,
Sau. Smita Sunil Pimpalgaonkar,
Aged about 48 years, At Popat Bhavan,
Chikhli Marg, Buldana, Tahsil and District
Buldana-443001. .... PETITIONER
VERSUS
1) State of Maharashtra,
a) Through its Secretary,
Ministry of Dairy Development,
Mantralaya, Mumbai-32.
b) Through its Secretary,
Ministry of Co-operatives,
Mantralaya, Mumbai-32.
2) District Central Co-operative Bank Ltd.,
Buldana.
3) Assistant Registrar,
Co-operative Societies, Buldana.
4) Divisional Joint Registrar,
Co-operative Societies, Amravati.
5) Maharashtra State Co-operative Milk
Federation Ltd., through Managing
Director, Mahanand Dugdha Shala,
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Parchim Drutgati Mahamarg (West Express
Highway), Goregaon, Mumbai-65.
6) Ganesh Ramdas Patil,
Aged about 53 years,
Occupation - Agriculturist,
R/o Ramwadi, Malkapur, Tq. Malkapur,
District Buldana.
7) Kamalchand Vimalchand Jain,
Aged about 61 years,
Occupation - Medical Practitioner,
R/o Radhakisan Chawl, Malkapur,
Tq. Malkapur, District - Buldana.
8) Vijaykumar Vimalchand Jain,
Aged about 50 years,
Occupation - Agriculturist,
R/o Radhakisan Chawl, Malkapur,
Tq. Malkapur, District - Buldana.
9) Udaychand Vimalchand Dage,
Aged about 57 years,
Occupation - Medical Practitioner,
R/o Radhakisan Chawl, Malkapur,
Tq. Malkapur, District - Buldana.
10) Sushil Vimalchand Jain,
Aged about 47 years,
Occupation - Medical Practitioner,
R/o Radhakisan Chawl, Malkapur,
Tq. Malkapur, District Buldana.
11) Special Recovery and Sales Officer
of Buldana District Central Co-operatives
Bank Ltd., Buldana. .... RESPONDENTS
______________________________________________________________
Shri R.L. Khapre, Advocate for the petitioner,
Shri K.R. Lule, Assistant Government Pleader for the respondent
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Nos.1(a), 1(b), 3 and 4,
Shri Abhijit Deshpande, Advocate for the respondent No.5,
Shri U.N. Vyas, Advocate for the respondent Nos.7 to 10,
None for the other respondents.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 17
JUNE, 2016
th
ORAL JUDGMENT :
1. Heard Shri R.L. Khapre, Advocate for the petitioner, Shri
K.R. Lule, Assistant Government Pleader for the respondent Nos.1(a),
1(b), 3 and 4, Shri Abhijit Deshpande, Advocate for the respondent
No.5 and Shri U.N. Vyas, Advocate for the respondent Nos.7 to 10.
Though the notice for final disposal is issued, the other
respondents have chosen not to put in appearance.
2. Rule. Rule made returnable forthwith.
3. The petitioner-society has challenged the order passed by
the Assistant Registrar, Co-operative Societies and maintained by the
Divisional Joint Registrar, Co-operative Societies in revision,
confirming the sale of the property of the petitioner pursuant to the
auction in favour of the respondent No.6. The petitioner-society has
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prayed for other ancillary reliefs.
4. The sale-deed, pursuant to the auction, is executed in
favour of the respondent No.6 on 11-01-2012. The respondent No. 6
has executed the sale-deed in respect of the same property in favour of
the respondent Nos.7 to 10 on 01-11-2012.
5. Shri U.N. Vyas, Advocate for the respondent Nos.7 to 10
has raised preliminary objection to the maintainability of the petition
on the ground that the petitioner has not explained laches. It is
submitted that the sale was confirmed by the order dated 06-07-2011,
the sale-deed is executed after the confirmation of sale, on 11-01-2012
and the petition is filed on 21-07-2014. The learned Advocate for the
respondent Nos.7 to 10 has submitted that the respondent Nos.7 to 10
have purchased the property from the respondent No.6 by valid sale-
deed before filing of the petition. The learned Advocate has argued
that the respondent Nos.7 to 10 are the bonafide purchasers and at the
time when the respondent Nos.7 to 10 purchased the said property, no
proceedings were pending before any authority in respect of the
property.
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The judgments given by the Hon'ble Supreme Court in the
case of Sadashiv Prasad Singh vs. Harendar Singh and others
reported in (2015)5 SCC 574 and in the case of Tilokchand
Motichand & others vs. H.B. Munshi and another in Writ Petition
No.53 of 1968 on 22-11-1968 have been relied upon to urge that
in such situation, the petition need not be entertained and should be
dismissed.
6. The facts on record show that the bids were opened in the
head office of the bank on 27-04-2011. Shri R.L. Khapre, Advocate for
the petitioner has pointed out that the order confirming the sale is
passed by the Deputy Registrar, Co-operative Societies on 06-06-2011.
The petitioner has produced on record at page No.89, copy of challan
showing that the respondent No.6 (auction purchaser) deposited the
amount for purchase of stamps on 05-01-2012. None of the
respondent has disputed this fact. The sale-deed is executed in favour
of the respondent No.6 on 11-01-2012 and this fact is also not
disputed.
The learned Advocate for the petitioner has referred to the
provisions of Rule 107(11)(g),(h)&(i) of the Maharashtra
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Co-operative Societies Rules, 1961 (hereinafter referred to as the
"Rules of 1961") and has submitted that the mandate of above rules is
not complied with and therefore, the auction sale is bad in law.
7. At the relevant time, Rule 107(11)(g),(h) & (i) of the Rule
of 1961 read as follows :
"Rule 107(11) - In the attachment and sale or sale without
attachment of immovable property, the following rules shall
be observed-
(a) ...................
(b) ...................
(c) ..................
(d) ..................
(e) ..................
(f) ..................
(g) A sum of money equal to 15 per cent of the
price of the immovable property shall be deposited by the
purchaser in the hands of the Sale Officer at the time of the
purchase, and in default of such deposit, the property shall
forthwith be re-sold:
Provided that where the applicant is the purchaser
and is entitled to set off the purchase money under clause
(k), the Sale Officer shall dispense with the requirements of
this clause.
(h) The remainder of the purchase money and the
amount required for the general stamp for the sale
certificate shall be paid within fifteen days from the date of
sale :
Provided that the time for payment of the cost of the
stamp may, for good and sufficient reasons, be extended at
the discretion of the Recovery Officer up to thirty days from
the date of sale :
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Provided further that in calculating the amounts to be
paid under this clause, the purchaser shall have the
advantage of any set off to which he may be entitled under
clause (k).
(i) In default of payment within the period
mentioned in the last preceding clause, the deposit may, if
the Recovery Officer thinks fit, after defraying the expenses
of the sale, be forfeited to the State Government and the
defaulting purchaser shall forfeit all the claims to the
property or to any part of the sum for which it may
subsequently be sold."
The order confirming the sale is passed by the District
Deputy Registrar on 06-06-2011. The petitioner has placed on record
copy of challan to show that the amount for purchasing stamps was
deposited by the auction purchaser on 05-01-2012. The amount is
deposited after seven months. The petitioner has raised specific
challenge that there is breach of Rules 107(11)(g),(h) & (i) of the
Rules of 1961 and the balance amount of 85% and the amount of
costs of stamps were required to be deposited within thirty days from
confirmation of sale.
The first proviso below Clause (h) of the Rule 107(11) of
the Rules of 1961 provides that the time to pay the costs of stamps
may be extended upto forty five days. Inspite of specific challenge
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raised by the petitioner that there is non-compliance of the above
Rules, none of the respondent has placed any material on record to
counter the challenge of the petitioner. In view of the uncontroverted
facts on record, it has to be held that the sale-deed executed in favour
of the respondent No.6 on 11-01-2012 is illegal as it is executed in
violation of mandate of the above Rules.
8. Apart from this, I find that the Special Recovery and Sales
Officer was asked to prepare the valuation report in respect of the
property and the valuer submitted the report dated 05-03-2010
showing the valuation of building, plant and machinery as
Rs.24,95,000/-. The public notice dated 12-03-2011 inviting offers,
shows the upset price of the property as Rs.24,95,000/-. The order
passed by the District Deputy Registrar on 06-06-2011 shows that the
authority was conscious that the upset price of the property was fixed
as Rs.24,95,000/-. In these circumstances, in my view, the offer given
by the respondent No.6 for purchasing the property for Rs.12,11,101/-
should not have been accepted.
9. The Special Recovery and Sales Officer issued another
public notice dated 07-08-2011 inviting offers for sale and again
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showing the upset price as Rs.24,95,000/-. This public notice was
issued after two months of the order passed by the District Deputy
Registrar confirming the sale. The Special Recovery and Sales Officer
is impleaded as respondent No.11 in this petition, however, he has
opted to stay away and not to assist the Court in determining the
controversy.
It is not understood as to why the public notice dated 07-
08-2011 was issued by the Special Recovery and Sales Officer on 07-
08-2011 when the District Deputy Registrar accepted the offer of the
respondent No.6, by the order dated 06-06-2011. It is further
unexplained as to why the sale-deed is executed in favour of the
respondent No.6 on 11-01-2012 when the Special Recovery and Sales
Officer had issued the public notice on 07-08-2011 inviting fresh offers
for sale of the same property. There is nothing on the record to show
as to what happened after the issuance of public notice dated
07-08-2011.
10. In the above circumstances and considering the
propositions laid down in the judgment given by the Hon'ble Supreme
Court in the case of Basanti Prasad vs. Chairman, Bihar School
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Examination Board and others reported in 2010(1) Mh.L.J. 729
referred by Shri Abhijit Deshpande, Advocate for the respondent No.5
and the judgment given by the Hon'ble Supreme Court in the case of
State of M.P. and another vs. Bhailal Bhai and others reported in
AIR 1964 SC 1006, in my view, the petition is required to be
entertained and decided overruling the preliminary objection raised on
behalf of the respondent Nos.7 to 10.
11. The provisions of Rule 107(11)(g),(h) & (i) of the Rules of
1961 are mandatory and it is laid down in the above referred Rules
that in case of the non-compliance of any part of the Rules, the sale
would be vitiated. In the present case, there has been illegality at
every step of the proceedings for auction of the property. Therefore,
the sale-deed executed in favour of the respondent No.6 on 11-01-
2012 has to be declared as illegal and has to be set aside. As the
respondent No.6 does not get valid title in respect of the property, the
subsequent sale-deed executed by the respondent No.6 in favour of the
respondent Nos.7 to 10 on 01-11-2012 is also bad in law and has to be
set aside.
12. Hence, the following order :
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(i) The public notices dated 12-03-2011 and 07-08-2011
published by the Special Recovery and Sales Officer are
quashed.
(ii) The order passed by the District Deputy Registrar on
06-06-2011 confirming the sale is set aside.
(iii) The sale-deed in respect of the property of the petitioner-
society executed in favour of the respondent No.6 on
11-01-2012 is declared illegal and is quashed.
(iv) The sale-deed executed by the respondent No.6 in favour
of the respondent Nos. 7 to 10 on 01-11-2012 is declared
illegal and is quashed.
(v) The amount deposited by the respondent No.6 with the
Special Recovery and Sales Officer for getting the sale-
deed dated 11-01-2012 shall be given to the respondent
Nos.7 to 10 within two months. If the amount is not paid
within two months, the concerned person shall be liable to
pay interest to the petitioner at 9% per annum from
18-08-2016 till the amount is paid to the petitioner. The
respondent Nos.7 to 10 will be at liberty to take
appropriate legal action for their other/balance claims, if
any, against the respondent No.6 and any other persons,
according to law.
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(vi) The respondent Nos.7 to 10 who are in possession of the
property shall handover vacant and peaceful possession of
the property to the respondent No.2-bank within two
months. The respondent No.2-bank shall take over
possession of the property within one month and take
steps to auction it by getting the fresh valuation report and
following procedure according to law.
(vii) As the respondents are responsible for creating mess, it is
held that the respondent No.2-bank shall not be entitled
for any interest on the amount recoverable from the
petitioner-society from 27-04-2011 till the amount is
recovered.
(viii)The facts on record show that the Special Recovery and
Sales Officer has not acted bonafide and has not
maintained the sanctity of auction process and has not
put in appearance before this Court to assist in the
adjudication process, exemplary costs of Rs.1,00,000/-
(Rupees One Lakh) are saddled on the Special Recovery
and Sales Officer who was responsible for the affairs at the
relevant time.
The respondent No.11 shall deposit the amount of
costs with the Registry of this Court within two months.
The respondent No.3-Assistant Registrar, Co-operative
Societies, Buldhana and the learned Assistant Government
Pleader shall inform the respondent No.11 about these
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directions.
(ix) On deposit of the amount of costs by the respondent No.11
- Special Recovery and Sales Officer, the petitioner shall
be given Rs. 50,000/- and the respondent Nos.1, 2, 3 and
4 shall be given Rs.10,000/- each and the balance amount
shall be deposited with the High Court Legal Services Sub-
Committee, Nagpur.
(x) The petition is allowed in the above terms.
JUDGE
adgokar
