SATHYANARAYANA RAO GHORPADE v. MINISTER OF CO-OPERATION DEPARTMENT OF CO-OPERATION GOVT OF KARNATAKA
2003-06-12
body2003
DigiLaw.ai
( 1 ) THE petitioner, questioning the legality and the validity of the order dated 24. 7. 2001 passed in Revision Petition No. CMW/46/cap/97 by the 1st respondent, has filed this writ petition. ( 2 ) THE husband of the 2nd respondent was the owner of agricultural lands measuring 3 36 acres in Survey No 102/1 situated at Barandur, Bhadravathi Taluk, Shimoga District which was offered as security to the loan of Ramesh Srinivasa Nikkam availed from the respondent No. 4 Bank. Since the loanee did not repay the loan, the 4th respondent referred the matter to arbitrator and dispute was raised. In pursuance of the same, award was passed. Thereafter, execution petition was filed and the land belonging to the 2nd respondent was put in auction by way of issuing public auction notification. The petitioner being the highest bidder, his bid was accepted by the auction officer and a proposal was sent to the competent authority for confirming the sale and the same was communicated to the petitioner as per Annexure-A dated 5. 6. 1995. In pursuance of the said proposal, the competent authority has not accepted the bid of the petitioner and has not confirmed the sale in his favour by its order dated 31. 7. 1995 in Ref No KICB/arcs/sale Con/32/95-96. Feeling aggrieved by the said order, the petitioner filed an appeal in No. DRB 2/11/96-97. The appellate authority, after hearing both sides and after considering the material on record, allowed the appeal and set aside the order passed by the competent authority by its order dated 18. 11. 1997. Feeling aggrieved by the said order, respondent No. 2 filed a revision before the Government in Revision Petition No. CMW/46/cap/97. The revisional authority, after hearing both the parties and after considering the material on record, allowed the revision and set aside the order passed by the appellate authority by its order dated 24. 7. 2001. Feeling aggrieved by the said order, the petitioner has presented this writ petition. ( 3 ) THE principal submission canvassed by the learned counsel for the petitioner is that the competent authority has passed the order dated 31. 7. 1995 behind his back, no notice was issued, no enquiry was conducted and hence it is opposed to the principles of natural justice.
( 3 ) THE principal submission canvassed by the learned counsel for the petitioner is that the competent authority has passed the order dated 31. 7. 1995 behind his back, no notice was issued, no enquiry was conducted and hence it is opposed to the principles of natural justice. He further submitted that the confirming authority has no power to pass the said order under the relevant provisions of the Act. Secondly, he submitted that the order passed by the appellate authority is in accordance with law and therefore interference by the revisional authority is contrary to the material on record Thirdly, he submitted that the revision filed by the 2nd respondent before the Government is not maintainable as she is not an aggrieved party because on the date of filing the revision, she has sold the property in favour of respondents 7 and 8. He contended that this aspect of the matter is not all taken into consideration by the revisional authority and therefore the impugned order is liable to be set aside. ( 4 ) PER Contra, the learned Counsel appearing for the respondents, interalia, contended and justified the impugned order. It is submitted that as per the relevant provisions of the Co-operative Societies Act and Rules, no notice is required to be issued to the petitioner for confirmation of sale and therefore the said contention urged by the learned counsel for the petitioner is liable to be rejected. Further, the learned counsel for the respondents submitted that mentioning a wrong provision in the order will not take away the right vested with the competent authority for passing the order. He pointed out that under Rule 38 (6) (a) of the Co-operative Societies Rules, he is competent to pass the said order. So far as the submission made by the learned counsel for the petitioner that the order passed by the appellate authority is in accordance with law, is concerned, he submitted that the appellate authority, without verifying the relevant provisions of the Act has observed that under Rule 38 (2) (g), the competent authority has no power to set aside the auction sale and that non-confirmation of the sale is one without jurisdiction and therefore, the appellate authority has erred in passing the said order.
It is submitted that feeling aggrieved by the said order, 2nd respondent filed a revision before the Government and brought to the notice of the revisional authority that the award has not been executed against the principal borrower who has got sufficient property to satisfy the award amount, in stead, it is executed against the 2nd respondent being a surety for the loan obtained by Sri Ramesh Srinivas Nikkam from the 4th respondent Bank. It is further submitted that if the 2nd respondent has sold the property in favour of respondents 7 and 8, she will be held liable for the same. The revisional authority has taken into consideration the relevant provisions of the Co-operative Societies Act and Rules and held that the said confirmation of sale is in violation of the relevant provisions of the Rules and that the 3rd respondent has got power under Rule 38 (6) (a) of the Rules to set aside the sale even in the absence of any application for setting aside the sale. The learned counsel therefore submitted that the contentions urged by the learned counsel for the petitioner are not sustainable and the writ petition is liable to be dismissed. The learned Government Pleader appearing for respondents 1 and 3, interalia, contended and justified the order passed by the revisional authority. ( 5 ) I have heard the learned counsel for the petitioner and the learned counsel appearing for the respondents at considerable length of time. I have re-evaluated the entire material available on the file and reconsidered the entire matter with the assistance of the learned counsel appearing for the parties. ( 6 ) ON careful perusal of the impugned order, I do not find any error or irregularity on the face of record on law or facts. Therefore, the writ petition is liable to be rejected at the threshold on this ground alone. It reveals from the records that auction has been held. The petitioner being highest bidder, his bid was accepted and he has deposited necessary amount as required under the relevant provisions of the Act and Rules and a proposal was sent to the confirming authority for confirmation of sale.
It reveals from the records that auction has been held. The petitioner being highest bidder, his bid was accepted and he has deposited necessary amount as required under the relevant provisions of the Act and Rules and a proposal was sent to the confirming authority for confirmation of sale. The confirming authority set aside the sale and further ordered to refund the bid amount along with 5% solatium to the petitioner as per Rule 38 (4) (i) of the Karnataka Co-operative Societies Rules of 1960 Feeling aggrieved by the said order, the petitioner filed an appeal before the appellate authority. The appellate authority allowed the appeal on the sole ground that the confirming authority has no power under Rule 38 (2) (g) of the Rules, without verifying the relevant provisions of the Rules. As rightly pointed out by the learned counsel for the respondents, under Rule 38 (6) (a), the confirming authority has got power to set aside the sale if it is found that there is procedural irregularity in accepting the highest bid. Therefore, in my considered view, the reasoning assigned by the appellate authority for allowing the appeal is contrary to the material on record and contrary to the relevant provisions of the co-operative Societies Act Further, the revisional authority, after taking into consideration the relevant provisions of the Act, after considering the material on record and after hearing both sides, has rightly held that the order passed by the appellate authority is not sustainable and accordingly, allowed the revision petition by setting aside the order passed by the appellate authority. Further, the learned counsel for the petitioner submitted that the 2nd respondent is not aggrieved by the order passed by the appellate authority because as on the date of filing the revision petition before the Government, she has sold the property in favour of respondents 7 and 8 and therefore, she has lost her right. The said submission has no substance because this fact has been taken into consideration by the revisional authority at the time of considering the case of the petitioner and respondent No. 2. In the instant case, the Bank authorities, instead of executing the award against the principal borrower, have chosen to execute it against the 2nd respondent whose land has been given as security.
In the instant case, the Bank authorities, instead of executing the award against the principal borrower, have chosen to execute it against the 2nd respondent whose land has been given as security. This fact has been taken into consideration by the revisional authority and having to non-compliance of the provisions of Rule 38 (2) (g) and 38 (6) (a) of the Karnataka Co-operative Societies Rules, it has rightly held that the order passed by the appellate authority is not sustainable and accordingly set aside the same. Therefore, I do not find any error or illegality in the impugned order. ( 7 ) HAVING regard to the facts and circumstances of the case as stated above, I do not find any justification to interfere with the impugned order. Accordingly, writ petition is dismissed. ( 8 ) THE learned Government Pleader is permitted to file his memo of appearance within four weeks from today. --- *** --- .