Kanti Lal Bafna vs State And Ors
2023 Latest Caselaw 7354 Raj

[2023:RJ-JD:29398]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2016/1999

Kanti Lal Bafna son of Shri Multan Mal Bafna, by caste Oswal, aged 29 years, resident of Mokalsar, Tehsil Siwana, District Barmer.

----Petitioner Versus

1. State of Rajasthan, Through Tehsildar, Siwana, District Barmer.

2. Debts Recovery Tribunal, Room No.4 Nehru Palace, Tonk Road Jaipur.

3. The Recovery Officer, Debts Recovery Tribunal, Room No.4 Nehru Palace, Tonk Road Jaipur.

4 State Bank Of India (Erstwhile State Bank of Bikaner and Jaipur), Branch Office, Pindwara.

5.Dhan Raj Jain Son of Shri Shejraj Jain, aged 55 years, resident of village Samdari, Tehsil Siwana, District Barmer.

                                                                 ----Respondents


For Petitioner(s)          :    Mr Anil Vyas
                                Mr Dharamveer Choudhary

For Respondent(s)          :    Mr Deepak Vyas
                                Mr RD Bhadu



               HON'BLE DR. JUSTICE NUPUR BHATI

                                 Judgment



Reserved on             : 13/09/2023
Pronounced on           : 19/09/2023

1. The matter is listed in the category of 'Oldest Cases for early

disposal'. The instant writ petition has been preferred by the

petitioner under Article 226 and 227 of the Constitution of India

with the following prayers:-

[2023:RJ-JD:29398] (2 of 15) [CW-2016/1999]

It is, therefore, respectfully prayed that by an appropriate writ, order or direction the order of attachment Ex.7 may kindly be quashed with all consequential reliefs and all further proceedings in pursuance of the order Ex.7 be quashed. Any other appropriate relief, which this Hon'ble Court deems just and proper in the facts and circumstances of the case may warrant be also granted. The costs of the writ petition be awarded in favour of the petitioner.

2. Brief facts of the case are that the petitioner purchased one

agricultural land situated at village Devliyaari Tehsil Siwana,

District Barmer bearing Khasra No. 74 from respondent No. 5 Shri

Dhan Raj Jain having area of 69 Bigha and 12 Biswas (latest

khatoni number being 26) through registered sale deed dated

25.9.1998 (Exhibit-1) for consideration of Rs 2,78,400/-. After

the purchase of the land, it had been mutated (Exhibit-2) in the

name of the petitioner and khasra Girdawari (Exhibit-3) was also

made in the name of the petitioner.

3. Thereafter the petitioner got the information on 19.05.1999

from the News paper Rajasthan Patrika regarding proclamation of

sale (Exhibit-5) that his land is being sold in auction by one

Advoacte Sampat Bothra despite having no case pending against

him in the Debts Recovery Tribunal or any other court neither was

any notice given to him nor was he party to any proceedings

wherein any order was made. Thus he filed a suit for permanent

injunction (Exhibit-4) against Shri Sampat Bothra in which

summons were served on him but he did not appear in court

despite the service and ex parte proceedings were directed to be

ordered and stay was granted upto the date 29.05.1999 to not

sell or auction the land in question. Thereafter Shri Sampat Bothra

[2023:RJ-JD:29398] (3 of 15) [CW-2016/1999]

put in the appearance through one Shri Vijay Singh Rathore and

an application was filed under order 39 Rule 4 of CPC 1908 for

vacation of interim order which was allowed by Learned Civil

Judge (J.D) Siwana.

4. Thereafter, the petitioner got information regarding other

proceedings wherein execution was filed against Shri Dhan Raj

Jain and despite the fact that the land was not mortgaged the

Recovery Officer passed an order dated 16.09.1998 attaching the

agricultural land after the decree dated 18.03.1997 was passed by

the Debt Recovery Tribunal (DRT in short) for which notice was

never served upon Shri Dhanraj Jain.

5. That from the affidavit of the Bank Manager which was filed

before the Civil Judge (J.D) Siwana. the petitioner got the

information that the property in question was not mortgaged with

the bank but a decree has been passed against Respondent No. 5

Shri Dhan Raj Jain in a case decided on 18.03.1997 and in

pursuance of the same, Recovery Officer has passed an

attachment order dated 16.09.1998 (Exihibit-7) for attaching the

movable property. That the above mentioned order was never

served upon Shri Dhan Raj Jain and thus the petitioner received

no information. Thereafter the petitioner moved an application

dated 02.06.1999 (Exhibit-6) before Civil Court to withdraw the

suit filed against Shri Sampat Bothra. The petitioner being

aggrieved of the attachment order dated 16.09.1998 (Exihibit-7),

prefers this writ petition.

[2023:RJ-JD:29398] (4 of 15) [CW-2016/1999]

6. At the outset Learned counsel for the respondents raised a

preliminary objection on alternative remedy being available to the

petitioner for filing an appeal to appellate tribunal under section

20 of the Recovery of Debts Due to Banks and Financial

Institutions Act 1993 and placed reliance on the following

judgments passed by the Hon'ble Supreme Court in the case of

T.P Vishnu Kumar versus Canara Bank Tiruppur and Ors

reported in (2013) 10 SCC 652; Punjab National Bank versus

O.C Krishnan and Ors reported in (2001) 6 SCC 569; State of

Uttar Pradesh and Another versus Uttar Pradesh Rajya

Khanij Vikas Nigam Sangharsh Samiti and Ors reported in

(2008) 12 SCC 675.

7. Learned counsel for the Petitioner opposed the same and

contended that the present writ petition is maintainable as

question of alternate remedy is relevant only at the stage of

admission and thus it would not be proper for this Hon'ble Court to

reject the writ petition at the final hearing only on the ground of

existence of alternative remedy and placed reliance on the

judgment of the Hon'ble High Court Of Kerala in the case of

Tahsildar Pathanapuram versus The Canara bank and Ors

reported in (2009) 0 Supreme (Ker) 1138; Union Bank Of

India Thodupuzha versus KJ Jose and Ors. reported in 2022

ILR (Ker) 514; and Judgement of the Hon'ble High Court of

Calcutta in the case of M/S Oshiya Industries Pvt. Ltd. versus

Steel Authority Of India Ltd and Another reported in (2016)

0 Supreme (Cal) 732.

[2023:RJ-JD:29398] (5 of 15) [CW-2016/1999]

8. Learned counsel for the petitioner further submitted that the

petitioner is a bonafide purchaser as evident from the sale deed

dated 25.09.1998 and the land in question has also been mutated

and thus he has the right to enjoy the property and thus nobody

can deprive the petitioner of his right of the property vested in

him without authority when all the revenue records are in his

name. He further stated that the agricultural land was neither

mortgaged by shri Dhan Raj Jain but an order of attachment has

been passed by the Recovery Officer in pursuance of the decree

dated 18.03.1997 passed by the Debts Recovery Tribunal and also

stated that Debt Recovery Tribunal is a civil Court and recovery of

amount below Rupees 10 lacs is to be made through civil court

and recovery of amount above Rupees 10 lacs is to be made by

the Debts Recovery Tribunal and decree of Debt Recovery Tribunal

is a decree of Civil court and Recovery Officer is authorised under

Section 25 of the Recovery of Debts Due to Banks and Financial

Institutions Act 1993. (Hereinafter referred to as the Act of 1993).

He also submitted that under section 22(2) Recovery of debts due

to banks and financial institution Act 1993 have been deemed to

be civil court and proceedings is deemed to be judicial

proceedings. He further submitted that as per section 37 of the

Rajasthan tenancy Act 1955 agriculture land is neither liable to

attachment nor sale by process of any civil court.

9. Learned counsel for the petitioner also submitted that the

petitioner was never party to any legal proceedings before Debt

Recovery Tribunal nor he was impleaded party to the proceedings

and the person from whom he purchased the land was the tenant

[2023:RJ-JD:29398] (6 of 15) [CW-2016/1999]

and holding the tenancy right as per the provisions of tenancy

laws and he was also not served any notice nor intimated about

the legal proceedings and no document is presented with regard

to the service and legal proceedings with the reply of the

respondents except one letter which does not create any right in

favour of he respondent bank. He also submitted that thus

objection of the respondent regarding alternative being available

to the petitioner is not applicable as the petitioner was not a party

to the proceedings nor the loan amount was taken by him.

10. Learned counsel for the petitioner further submitted that

section 12 of the Agricultural Credit Operations (Removal Of

Difficulties) Act 1974 (Hereinafter referred to as the Act of 1974)

provides that so far as recovery of any financial assistance given

by the bank is concerned Civil court can attach and sell any land

or any interest therein charged or mortgaged to the bank by an

agriculturist thus order of attachment and consequential order of

sale and proclamation of sale and all the proceedings are void and

without jurisdiction as in the present case it is admitted that the

land in question is not mortgaged thus as per the above

mentioned provision of section 12 of the Agricultural Credit

Operations (Removal Of Difficulties) Act 1974, the land of the

petitioner cannot be attached. He also submitted that according to

the Constitution Of India the agricultural land is subject of State

list-II and only State can make any law regarding any subject in

the State list under entry No 18 of schedule VII of the Constitution

Of India.

[2023:RJ-JD:29398] (7 of 15) [CW-2016/1999]

11. Learned counsel for the petitioner further submitted that as

per section 14 of the Act of 1974 it is clear that banks are

authorised to get the agricultural land attached and sale only in

certain cases where the land has already been mortgaged to them

for the purposes of agricultural loan and otherwise there is no

such power with Debts Recovery Tribunal to attach and sell the

agricultural land. He also contended that the petitioner is a

bonafide purchaser and shri Dhan Raj Jain is not the father in law

of the petitioner as he is the brother of his father in law ie Shri

Sukhan Raj and the petitioner has purchased the land in question

for consideration of rupees 2,78,400/- and the land has thereafter

been mutated and thus the agricultural land cannot be attached

unless the sub registrar or the Tehsildar Siwana is informed of the

same because the Tehsildar is the land holder and without making

him the party no attachment and sale can be made of the

agricultural land because the Tehsildar is functioning on behalf of

the State as a landholder. He further submitted that the Act of

1993 is a Central law and cannot exercise powers mentioned in

the State list thus the attachment order exhibit 7 is void and

without jurisdiction and violative of Article 300 A of the

Constitution of India and moreover petitioner has never been

informed by the Recovery Officer regarding the attachment and

thus the proceedings in pursuance of exhibit 7 are void and

without jurisdiction.

12. Per Contra learned counsel for the respondent bank and

State Jointly submitted that the attachment order dated

06.09.1997 under the provisions of Debt Due To Banks and

[2023:RJ-JD:29398] (8 of 15) [CW-2016/1999]

Financial Institutions Act 1993 cannot be challenged by way of

writ petition before the Hon'ble Court, and that if the petitioner is

aggrieved by the attachment order then there is a remedy

available by way of appeal under section 20 of the Act of 1993 to

the Debt Recovery Appellate Tribunal thus the writ petition is not

maintainable against the attachment order issued by the Recovery

Officer Jaipur as the petitioner ought to have exhausted the

alternative remedy before approaching the writ jurisdiction.

13. Learned counsel for the respondent bank and State Jointly

also submitted that the Debt Recovery Tribunal Jaipur had passed

an order dated 18.03.1997 in favour of the bank against Shri

Dhan Raj Jain for a sum of rupees 1,16,72,376/- in respect of

which certificate dated 18.03.1997 was drawn by the Presiding

Officer, Debt Recovery Tribunal and thus in realization of the

decretal amount the Recovery Officer in pursuance of the

certificate, issued the order of attachment on 16.09.1998 which

was thereafter executed on 23.09.1998 by the Commissioner,

Advocate shri Chain Singh Soda. He further submitted that the

auction of the property was held on 24.05.1999 and when the

proceedings were pending before Debt Recovery Tribunal Jaipur, in

order to frustrate the execution proceedings before the Debt

Recovery Tribunal the present writ has been filed by the petitioner

in collusion with Shri Dhan Raj Jain who is the Judgement Debtor

before the Debt Recovery Tribunal and in execution of that decree

his land has been attached and auctioned. He also submitted that

in order to help the Judgement debtor the present writ petition

has been filed by the petitioner since the petitioner is a son in law

[2023:RJ-JD:29398] (9 of 15) [CW-2016/1999]

of shri Sukhan Raj Jain who is the real brother of the Judgement -

Debtor Shri Dhan Raj Jain thus the petitioner has not approached

the Hon'ble Court with clean hands and has intention to defeat the

execution proceedings before the Debt Recovery Tribunal.

14. Learned counsel for the respondents further submitted that

the petitioner is not a bonafide purchaser and have purchased the

land in a collusive manner from Shri Dhan Raj Jain after the land

was attached on 16.09.1998 and thus the sale deed dated

25.09.1998 was executed in a manipulated manner in favour of

the petitioner by Shri Dhan Raj Jain who is a close relative of the

petitioner and thus the sale deed is a sham transaction between

the petitioner and Shri Dhan Raj Jain because the already

attached land cannot be sold or cannot be purchased by anyone

and thus no one can derive valid title when the attachment of the

land in question had been done on 16.09.1998, prior to the

transaction of sale deed dated 25.09.1998 which itself was void ab

initio wherein no right could be accrued to the petitioner by virtue

of such sale deed particularly when such transaction has been

made between the petitioner and the judgment debtor who at the

time of such transaction had complete knowledge of the fact of

attachment order dated 16.09.1998 for the land in question thus

the writ petition deserves to be dismissed.

15. Learned counsel for the respondents also submitted that the

attached land was auctioned on 24.05.1999 and final bid was

submitted for Rs 3,11,000 by one Joga Ram s/o Shri Prabhu Ji

who deposited the sale consideration. He further submitted that

[2023:RJ-JD:29398] (10 of 15) [CW-2016/1999]

the attachment execution dated 23.09.1998 was done in presence

of petitioner's father in law (Shri Sukhan Raj) thus the petitioner

had the information of the attachment and thus the petitioner

cannot deny that he did not have knowledge of the attachment of

the land in question. He also submitted that a suit fir Permanent

Injunction before Civil Judge Siwana was filed which was baseless

and without jurisdiction, which proves that petitioner wanted to

put obstruction in the auction proceedings. The court below also

passed an order dated 01.06.1999 vacating the earlier interim

order by which the auction proceedings were stayed on an

application filed under order 39 Rule 4 of the Civil Procedure Code

1908 by shri Sampat Bothra.

16. Learned counsel for the respondents further submitted that

the attachment order dated 16.09.1998 was passed in a legal

manner and the notice was also served however Judgment debtor

Shri Dhan Raj Jain was not available at that time thus attachment

was made in presence of his real brother Shri Sukhan Raj thus

petitioner cannot state that the petitioner did not receive any

information regarding the same. He also submitted that under

section 25 of the Act of 1993 one of modes of recovery of debts is

that the Recovery Officer on receipt of certificate issued by Debt

Recovery Tribunal shall proceed to recover the amount of debt by

way of attachment and sale of immovable or movable property of

the defendant, thus the attachment order dated 16.09.1998 has

been rightly passed.

[2023:RJ-JD:29398] (11 of 15) [CW-2016/1999]

17. Learned counsel for the respondents further submitted that

though the Debt Recovery Tribunal be deemed to be a civil court

but it cannot be precluded from attaching the agricultural land in

question and further submitted that the recovery certificate issued

by the Presiding Officer of Debt Recovery Tribunal was never

challenged before court nor any objections were raised before the

Presiding Officer of Tribunal by the judgement debtor Shri Dhan

Raj Jain. He also submitted that the plea of the petitioner

regarding section 37 of the Rajasthan Tenancy Act 1955 cannot be

taken because there is no bar under law that a tribunal cannot

make attachment and sale of agricultural land and moreover as

the objections were not taken by the judgment debtor against

attachment in execution proceedings. He further submitted that as

per section 12 of the Act of 1974 the civil court can attach and sell

the agricultural land in question when the petitioner took loan of

more than 1 crore and did not pay back a single penny to the

bank

18. Learned counsel for the respondents also submitted that it is

immaterial whether the agricultural land was mortgaged with the

bank or not as the power to affect attachment and sale of

agricultural land by the Debt Recovery Tribunal cannot be curtailed

by section 37 of the Act of 1955 and thus all the movable and

immovable properties of the defendant borrower can be validly

attached and sold away by the Debt Recovery Tribunal and when

the borrower himself has not raised any objections, this the

present petitioner cannot raise any such objections and moreover

[2023:RJ-JD:29398] (12 of 15) [CW-2016/1999]

only on the basis of a manipulated mutation entry the attachment,

auction and thereafter the sale cannot be made void.

19. Learned counsel for the respondents further submitted that

the petitioner has no right to hold the land in question which has

already been attached by the court prior to the sale deed and it

has further been put to auction on 24.05.1999 after issuing

notices to all the concerned people and the final bid was in favour

of one Shri Jaggaram S/o Shri Prabhuji, R/o samdari who had

deposited the amount with the bank.

20. Heard learned counsel for the parties; perused the material

available on record and the judgments cited at the bar.

21. This court observes that learned counsel for the respondents

raised a preliminary objection regarding alternative remedy being

available to the petitioner by way of filing appeal before Appellate

Tribunal under section 20 of the Recovery of Debts Due to Banks

and Financial Institutions Act 1993. Undoubtedly the petitioner has

an alternative remedy available under Section 20 of the Act of

1993 however this court is not inclined to dismiss the matter on

the ground of statutory alternative remedy being available to the

petitioner as the matter is pending before this court since 1999

and thus after passage of more than 23 years it would not be in

the interest of justice to relegate the petitioner to the Appellate

Authority and thus the submission of the learned counsel for the

respondent for dismissal of writ petition on the ground of statutory

alternative remedy available under section 20 of the Act of 1993 is

rejected.

[2023:RJ-JD:29398] (13 of 15) [CW-2016/1999]

22. This Court further observes that the petitioner had due

knowledge of the attachment order dated 16.09.1998 of the land

in question as Shri Sukhan Raj who is the father-in-law of the

petitioner and real brother of the Judgement debtor i.e Shri Dhan

Raj who is respondent No.5 in the writ petition and despite such

knowledge the petitioner knowingly purchased the land from the

private respondent No.5 and such act of the petitioner and private

respondent no.5 reflects that there was connivance between them

and with the purpose to frustrate execution proceedings dated

23.09.1998 such transaction of the land in question was made.

The petitioner's father-in-law Shri Sukhan Raj was having full

knowledge of the attachment warrant and the proceedings

initiated for the land in question as the order executing the

attachment warrant dated 23.09.1998 was affixed on the property

of private respondent No.5 and on account of his absence it was

duly identified by the father-in law of the petitioner as evident

from Annexure-R/1 and the same is reproduced here as under:-

प्रेषित :-

श्रीमान वसूली अधिकारी महोदय, ऋणनिवारण न्यायालय, जयपुर ।

महोदयजी, मदयून धनराज जैन वर्तमान में मैसूर कर्नाटक में रहता है , इसलिए फार्म नम्बर 16 का चस्पा मदयून धनराज जैन के भाई सुकनराज दाँ ती की निशां देही पर धनराज जैन की कृषि भूमि खसरा नम्बर 74 मोजा दे वली माली एव धनराज जैन की मकान पर किया गया एं व सुकनराज दां ती के हस्ताक्षर बतौर साक्ष्य उक्त फार्म पर करवाये । एक फार्म नम्बर 16 बाद तामील सेवा में पेश है ।

एसडी- सुकनराज निवासी-समदडी, बाडनेर ठू एसडी - चना संह सोढा, एडवोकेट 23-9-98

[2023:RJ-JD:29398] (14 of 15) [CW-2016/1999]

कमिश्नर, ऋण निवारण न्यायालय, जयपुर ।

23. This Court also observes that it is writ large that the

petitioner cannot be said to be a bonafide purchaser of the land in

question on one more ground that the sale deed has been

executed between the petitioner and private respondent No.5 on

25.09.1998 ie. after the land was attached vide order dated

16.09.1998 (Exhibit-7). It is a fundamental principle of the law of

Transfer of Property that no one can confer a better title than what

he himself has ("Nemo dat quod non habet"). The private

respondent No.5 did not have the power to sell the property to the

petitioner before executing the sale deed as the land in question

had already been attached. Therefore, the petitioner could not

have derived any valid title to the land in question because the

private respondent No.5 himself did not have any title and thus,

had nothing to convey to the petitioner except perhaps the

litigation.

24. This Court also observes that the contention of learned

counsel for the petitioner that the land in question was being sold

by way of auction which came to the knowledge of the petitioner

on 19.05.1999 is not acceptable by a bare perusal of Annexure-R/

1 it is clear that the petitioner's father-in-law had complete

knowledge of the execution proceedings initiated against the

private respondent No.5 of the said land in question and the

petitioner being son-in-law of real brother of the private

respondent No.5 was thus having knowledge of the execution

proceedings initiated against the private respondent, who

[2023:RJ-JD:29398] (15 of 15) [CW-2016/1999]

knowingly purchased the said property in question. Further, in the

entire writ petition, the petitioner has not been able to make out

the case that the sale deed was entered between the petitioner

and the private respondent No.5 prior to the order of attachment

and even if the land in question has been mutated in favour of the

petitioner then too the petitioner cannot said to be having a right

over the said land in question.

25. In view of the above observations, the writ petition being

devoid of merit is hereby dismissed. Stay application as well as all

other pending applications, if any, also stand dismissed.

26. Amended cause title has been filed which has been taken on

record.

(DR. NUPUR BHATI),J 7-/surbhi /-

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