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2003 DIGILAW 590 (GUJ)

SAMEER ENGINEERING WORKS v. DISTRICT COLLECTOR

2003-09-29

K.A.PUJ

body2003
K. A. PUJ, J. ( 1 ) SPECIAL Civil Application No. 1448 of 2003 was filed by one M/s. Sameer Engineering Works, a Partnership Firm engaged in the activity of manufacturing machines like power looms and spare parts and for that purpose, the petitioner Firm has constructed a factory in area admeasuring 1511 Sq. Mtr. and 755. 50 Sq. Mtr. of built up area on Final Plot No. 145/1 situated at Naroda, which is known as Old Malay Rubber Factory Compound. ( 2 ) THE petitioner firm has challenged in the present petition, the high-handed action of respondent No. 2 i. e. The Special Recovery Officer of the Vijay Co-Operative Bank Limited in giving possession of the premises to respondent No. 4, namely, Mr. Pravinchandra Naranbhai Patel, Karta of Naranbhai N. Patel, H. U. F. and Pravinchandra N. Patel, H. U. F. , Vice-Chairman of the respondent No. 3 Bank, on 01. 02. 2003 despite the fact that on the said date, the sale was not confirmed as required to be confirmed under Section 179 of the Bombay Land Revenue Code and, therefore, the action taken by the respondent No. 2 in giving possession to respondent No. 4 is in gross violation of Section 181 of the Bombay Land Revenue Code. The challenge made against the said action of the respondent No. 2 on the ground that the premises worth Rs. 1,44,00,000/= has been sold at a very law price of Rs. 68,00,000/= and that too to the Vice Chairman of the respondent No. 3 Bank which itself shows that the respondent Nos. 2,3 and 4 have met their hands in glove with a malafide intention to benefit respondent No. 4. It was also challenged on the ground that the respondent No. 2 in high-handed action gave possession of the premises to respondent No. 4 on 01. 02. 2003 despite the fact that the sale of the premises is not confirmed by the Collector under Section 179 of the Bombay Land Revenue Code and, therefore, it is in gross violation of Section 181 of the Code. It is further challenged on the ground that the procedure followed by respondent No. 2 in auctioning the premises is in violation of the provisions of Bombay Land Revenue Code and the action of the respondent No. 2 itself suffers from material irregularity and fraud. It is further challenged on the ground that the procedure followed by respondent No. 2 in auctioning the premises is in violation of the provisions of Bombay Land Revenue Code and the action of the respondent No. 2 itself suffers from material irregularity and fraud. ( 3 ) SPECIAL Civil Application No. 1462/03 is filed by M/s. Karma Fabrics, M/s. Dhaval Corporation, M/s. Suraj Engineering Works and M/s. Shri Ram Engineering Works against the action of the respondent No. 2, namely, The Special Recovery Officer of the Vijay Co-Operative Bank Limited i. e. respondent No. 3 herein, in selling the rented premises of the petitioners in public auction to respondent No. 4 as arrears of land revenue of respondent No. 3 without adjudicating the fact that the present petitioners have tenancy rights in the premises which were sought to be sold. The said action of the respondent No. 2 was challenged on the ground that no procedure as laid down in Bombay Land Revenue Code has been followed by the respondent No. 2 before evicting the petitioners from the rented premises. It is also challenged on the ground that the said action is in breach of the principles of natural justice as no notice or opportunity of hearing was given to the petitioners to point out that the premises sought to be sold are rented to the present petitioners. It was further challenged on the ground that respondent No. 2 was aware that Civil Suit Nos. 3768/02, 3769/02 and 3427/02 filed by the petitioners No. 1,2 and 3 respectively, interalia praying for permanent injunction from dispossessing the petitioners from the premises by respondent No. 2 were pending before the City Civil Court at Ahmedabad. The auction was also challenged on the ground that the respondent No. 2 has acted in high-handed manner by evicting the petitioners from the premises on 01. 02. 2003 and handing over the possession to respondent No. 4 without confirmation of sale which is in gross violation of Section 181 of the Code. It was further challenged on the ground that the order dtd. 07. 02. 02. 2003 and handing over the possession to respondent No. 4 without confirmation of sale which is in gross violation of Section 181 of the Code. It was further challenged on the ground that the order dtd. 07. 02. 2003 passed by the respondent No. 2 approving the sale of the premises in favour of respondent No. 4 suffers from the vice of non-application of mind, breach of principles of natural justice and abuse of powers under the Bombay Land Revenue Code and, therefore, the said order deserves to be quashed and set aside. ( 4 ) SINCE in both the petitions, the challenge is against the order dtd. 07. 02. 2003 passed by the respondent No. 2 approving the sale of the premises in favour of respondent No. 4, though on different grounds, the same are to be disposed of by this Common judgment. ( 5 ) THE facts giving rise to S. C. A. No. 1448/03 is that in order to increase its working capital, the petitioner had made an application for cash credit facility with the respondent No. 3 Bank in the Month of August, 1995. The respondent No. 3 has granted cash credit facility for a sum of Rs. 28,00,000/= against an equitable mortgage dtd. 21. 10. 1995 and subsequently for additional loan, another equitable mortgage dtd. 21. 11. 1995 was executed in favour of the respondent No. 3 Bank in respect of the above referred premises. Since the petitioner was unable to pay the cash credit facility, the respondent No. 3 Bank had instituted Summary Lavad Suit No. 1266 of 1999 before the Board of Nominees Court at Ahmedabad, directing the petitioners, his partners and guarantors therein to pay a sum of Rs. 41,15,078=50 and interest thereon at the rate of 23% p. a. with effect from 06. 10. 1999. ( 6 ) SIMILARLY, respondent No. 3 Bank had also instituted Summary Lavad Suit No. 1267 of 1999 and 1268 of 1999 before the Board of Nominees at Ahmedabad on 06. 10. 1999 against Sameer Remedies Pvt. Ltd. wherein one of the partners Mr. Laljibhai Arjanbhai Patel of the present petitioner is the Director. The said Suits were filed interalia praying for an order directing the defendants therein to pay a sum of Rs. 8,68,169/= and Rs. 5,69,435/= respectively and interest thereon at the rate of 23% p. a. with effect from 06. 10. 1999. Laljibhai Arjanbhai Patel of the present petitioner is the Director. The said Suits were filed interalia praying for an order directing the defendants therein to pay a sum of Rs. 8,68,169/= and Rs. 5,69,435/= respectively and interest thereon at the rate of 23% p. a. with effect from 06. 10. 1999. ( 7 ) THE Suit filed against the petitioner was decreed vide order dtd. 13. 01. 2000 and the Suits filed against Sameer Remedies Pvt. Ltd. were decreed on 07. 01. 2000 and 24. 01. 2000. Against the order dtd. 13. 01. 2000, the petitioner filed Appeal No. 132 of 2000 before the Gujarat Co-operative Revenue Tribunal on 22. 03. 2000. Similarly, appeal being Appeal Nos. 130 of 2000 and 131 of 2000 were filed on 22. 03. 2000 by Sameer Remedies Pvt. Ltd. against the order dtd. 07. 01. 2000 and 24. 01. 2000 respectively. The Tribunal vide its order dtd. 16. 10. 2000 dismissed all the three Appeals for default with no order as to costs. ( 8 ) SINCE the Appeals were dismissed for default, restoration Application No. 4/2000 in Appeal No. 130/2000 was filed by the petitioner and Restoration Application No. 5/2000 in Appeal No. 131 of 2000 and 6/2000 in Appeal No. 132/2000 was preferred by Sameer Remedies Pvt. Ltd. The said restoration applications were allowed by the Tribunal on 17. 03. 2003 and Appeals are now pending for disposal on merits before the Tribunal. ( 9 ) DURING the pendency of the Restoration Application before the Tribunal, the District Registrar, Co-operative Society issued Recovery Certificate dtd. 23. 01. 2001 for recovery of Rs. 41,15,078=50 with interest in view of the decree passed in Summary Lavad Suit No. 1266 of 1999. Similarly, Recovery Certificates for Rs. 8,68,169/= and for Rs. 5,69,435/= with interest were also issued by the District Registrar, Cooperative Society against Sameer Remedies Pvt. Ltd. in view of the decree passed in Summary Lavad Suits No. 1268/99 and 1267/99 respectively. The said Recovery Certificates were sent to the Special Recovery Officer for recovery of the said dues, as arrears of land revenue under the Provisions of Bombay Land Revenue Code. The notices under Section 152 as well as under Section 200 were issued on the petitioner on different dates and ultimately, the respondent No. 3 passed an order dtd. 5. 10. The notices under Section 152 as well as under Section 200 were issued on the petitioner on different dates and ultimately, the respondent No. 3 passed an order dtd. 5. 10. 2001 attaching the right, title and interest of the premises on the ground of non-payment of the amount of Rs. 41,15,078=50/- and also on the ground of non-payment of the amount of Rs. 14,37,604/= by Sameer Remedies Pvt. Ltd. A valuation of the premises was carried out and a valuation report was given by Mr. Amrut H. Patel, Chartered Engineer and Registered valuer, wherein the premises along with the structure thereon is valued at Rs. 92,69,000/ -. The petitioner has also obtained the valuation report from Mr. P. S. Rangwala, a Govt. Registered and approved valuer on 13. 10. 2001, valuing the said premises at Rs. 1,44,00,000/ -. A Proclamation dtd. 21. 04. 2002 was issued by the respondent No. 2 under Section 165 (5) for effecting the sale of the premises by auction on 08. 03. 2002. In the said Proclamation, the upset price was fixed at Rs. 92,70,000/ -. Pursuant to the said Proclamation, a public notice in daily newspaper "sandesh" dtd. 05. 02. 2002 and in "gujarat Samachar" dtd. 06. 02. 2002 were given for auction of the premises. However, the auction could not take place on 08. 03. 2002. Hence, another proclamation dtd. 20. 08. 2002 was issued by the Special Recovery Officer for auctioning the premises on 27. 09. 2002 wherein the upset price of the premises was fixed at Rs. 67,54,182/= instead of Rs. 92,70,000/=. Pursuant to this price proclamation, a public notice was published in the newspaper "loksatta" dtd. 3. 09. 2002 wherein no upset price was stated. Pursuant to the second proclamation as well as the advertisement, auction was held on 27. 09. 2002 and the premises was sold for a sum of Rs. 68,00,000/- to respondent No. 4, the Vice Chairman of the respondent No. 3 Bank and the possession was given to the respondent No. 4 on 01. 02. 2003 as per the impugned order dtd. 07. 02. 2003. It is this order passed on 07. 02. 2003 which is under challenge in S. C. A. No. 1448/2003. 68,00,000/- to respondent No. 4, the Vice Chairman of the respondent No. 3 Bank and the possession was given to the respondent No. 4 on 01. 02. 2003 as per the impugned order dtd. 07. 02. 2003. It is this order passed on 07. 02. 2003 which is under challenge in S. C. A. No. 1448/2003. ( 10 ) AS far as S. C. A. No. 1462/2003 is concerned, it is the case of the petitioners that the petitioner No. 1 has taken on rent the premises admeasuring 19 X 42 Sq. Feet from the landlord situated at Final Plot No. 145/1 of T. P. Scheme No. 12, Mauje Naroda vide agreement dtd. 27. 12. 1990 with effect from 01. 12. 1990 on a rent of Rs. 2000/= per month. Similarly, petitioner No. 2 had taken on rent the premises being Shed No. 2 admeasuring 15 X 70 Sq. Feet from the landlord, situated at Survey No. 01091/2 paiki Final Plot No. 145/1 of T. P. Scheme No. 12, Mauje Naroda, vide agreement dtd. 31. 08. 1994 with effect from 01. 05. 1994 for a period of 15 years on a monthly rent of Rs. 1500/=. Similarly, petitioner No. 3 has taken on rent the premises situated at Revenue Survey No. 01091/2 paiki Final Plot No. 145/1 of T. P. Scheme No. 12, Mauje Naroda from the landlord, on rent as per the agreement executed on 27. 12. 2001, with effect from 01. 08. 2001 on a monthly rent of Rs. 3,000/=. Likewise, the petitioner No. 4 has also taken the premises on rent admeasuring 70 X 35 Sq. Feet from the landlord vide Agreement dtd. 23. 04. 1998 on a monthly rent of Rs. 7,000/=. Thus, the petitioners were legally having the possession of the rented premises. On 17. 09. 2002, a notice was affixed by the respondent No. 2 on the rented premises of the petitioners interalia stating that the auction of the premises were held on 27. 09. 2002 pursuant to the proclamation dtd. 20. 08. 2002. Since the petitioners apprehended that under the guise to recover the dues from the landlord by auctioning the premises, the petitioners would be dispossessed, they have filed Civil Suits No. 3768/02, 3769/02 and 3427/02 before the City Civil Court at Ahmedabad on 16. 10. 2002. 09. 2002 pursuant to the proclamation dtd. 20. 08. 2002. Since the petitioners apprehended that under the guise to recover the dues from the landlord by auctioning the premises, the petitioners would be dispossessed, they have filed Civil Suits No. 3768/02, 3769/02 and 3427/02 before the City Civil Court at Ahmedabad on 16. 10. 2002. In Civil Suits No. 3768/02 and 3769/02, Court Commissioner was appointed and the Panchnama was drawn from which it was evident that the petitioner Nos. 1 and 2 are in possession of the rented premises. In the said proceedings, reply was filed by the respondent No. 2 denying that the petitioners are in possession of the premises as tenants. However, it was nowhere mentioned in the said reply that the premises has been auctioned on 27. 09. 2002. Thereafter, on 01. 02. 2003, the respondent No. 2 tried to dispossess the petitioners from the premises. The petitioners No. 1 and 2, therefore, filed an application before the respondent No. 2 on 01. 02. 2003, interalia, requesting him not to take any action on the ground that Civil Suits No. 3768/02 and 3769/02 are pending before the City Civil Court, Ahmedabad. It was also pointed out in the said application that the premises of the petitioners are the rented premises and they have tenancy rights and, therefore, respondent No. 2 has no right to dispossess the petitioners from the premises for recovery of the dues of the landlord. Despite this fact, possession was taken and the same was handed over to the respondent No. 4 on 01. 02. 2003. The petitioners thereafter filed an application on 04. 02. 2003 before the Collector interalia complaining that the possession of the premises was forcefully taken from the petitioners. However, without taking into consideration the said application, straightway an order dtd. 07. 02. 2003 was passed by the respondent No. 2 approving the sale of the premises in favour of the respondent No. 4 who is the Vice Chairman of the respondent No. 3 Bank and it is this order which is under challenge in S. C. A. No. 1462/2003. ( 11 ) MR. Mihir Joshi and Ms. Amrita Thakore, learned advocates appearing for the petitioners in S. C. A. No. 1448 of 2003 and Mr. Mihir Joshi and Mr. ( 11 ) MR. Mihir Joshi and Ms. Amrita Thakore, learned advocates appearing for the petitioners in S. C. A. No. 1448 of 2003 and Mr. Mihir Joshi and Mr. Vimal Patel, learned advocates appearing for the petitioners in S. C. A. No. 1462 of 2003 have submitted that the impugned order dtd. 07. 02. 2003 passed by respondent No. 2 is absolutely illegal, unjust, arbitrary, contrary to the provisions of the Bombay Land Revenue Code and, therefore, deserves to be quashed and set aside. Mr. Mihir Joshi has submitted that respondent No. 4 in whose favour the sale was approved, is the Vice-Chairman of respondent No. 3 Bank. He has further submitted that on one hand, respondent No. 3 has invoked the machinery under the Bombay Land Revenue Code to recover the dues as arrears of land revenue from the petitioners and on the other hand, the premises were sold by respondent No. 2 to the Vice Chairman of the respondent No. 3 Bank. He has, therefore, submitted that this fact itself demonstrates that the respondent Nos. 2 to 4 have met hand in glove only with a view to see that the subject premises are sold at a very law price benefiting the respondent No. 4 and at the same time, the dues of the respondent No. 3 Bank are recovered. Mr. Joshi has further submitted that the premises in question were never mortgaged by Sameer Remedies Pvt. Ltd. and the said premises do not belong to the said Sameer Remedies Pvt. Ltd. and hence, the dues of Sameer Remedies Pvt. Ltd. cannot be recovered by the respondent No. 2 from the land of the petitioners. Mr. Joshi has further submitted that at the time when the first proclamation dtd. 24. 01. 2002 was issued, the upset price of the premises were fixed at Rs. 92,70,000/=. Even from the Valuation Report dtd. 16. 10. 2001, it is evident that the property was worth Rs. 92,69,000/=. Further, from the Valuation Report dtd. 13. 10. 2001 given by Mr. P. S. Rangwala, the premises were valued at Rs. 1,44,00,000/=. However, for the reasons best known to the respondent No. 2, in the subsequent proclamation dtd. 20. 08. 2002, the upset price of the premises was fixed at Rs. 67,54,182/- without calling for fresh valuation of the property as on 20. 08. 2002. Mr. 13. 10. 2001 given by Mr. P. S. Rangwala, the premises were valued at Rs. 1,44,00,000/=. However, for the reasons best known to the respondent No. 2, in the subsequent proclamation dtd. 20. 08. 2002, the upset price of the premises was fixed at Rs. 67,54,182/- without calling for fresh valuation of the property as on 20. 08. 2002. Mr. Joshi has further submitted that the upset value of the premises was reduced only with a view to see that the premises were sold at a very law price in order to benefit the respondent No. 4, the Vice Chairman of the respondent No. 3 Bank. The respondent No. 2 has, therefore, committed material irregularity and fraud on the petitioner in conducting the said public auction. Mr. Joshi has further submitted that the respondent No. 2 has violated the Provisions of Bombay Land Revenue Code by conducting the auction of the premises of the petitioners. Under Section 179 of the Bombay Land Revenue Code, the Collector is required to confirm the sale on expiry of 30 days from the date of the sale. Admittedly, when the possession was given to respondent No. 4 on 01. 02. 2003, the sale was not confirmed by the Collector under Section 179 of the Bombay Land Revenue Code and hence, the possession given was in gross violation of Section 181 of the Bombay Land Revenue Code. ( 12 ) HE has further submitted that the objections raised dtd. 04. 02. 2003 were not taken into consideration and the respondent No. 2 has approved the sale vide order dtd. 07. 02. 2003. Mr. Joshi has lastly submitted that even otherwise part of the said premises was given on rent to Karma Fabrics and Dhaval Corporation vide agreement dtd. 31. 08. 1994 and 27. 12. 1990, on a monthly rent of Rs. 1,500/= and Rs. 2000/= respectively. The tenants were in fact in possession of the premises and they are regularly paying the rent to the petitioners. The said tenants were forcefully removed by the respondent No. 2 on 01. 02. 2003 only with a view to give vacant possession of the premises to respondent No. 4. This also amply demonstrates that respondent No. 2 has committed fraud and material irregularity in conducting the public auction only with a view to help and benefit respondent No. 4. Mr. 02. 2003 only with a view to give vacant possession of the premises to respondent No. 4. This also amply demonstrates that respondent No. 2 has committed fraud and material irregularity in conducting the public auction only with a view to help and benefit respondent No. 4. Mr. Joshi has further submitted that the action of the respondent No. 2 to auction the premises and to confirm the sale is itself illegal and is not in accordance with law and provisions contained in Bombay Land Revenue Code. It is further submitted that the order dtd. 07. 02. 2003 is an order of confirmation which is beyond the authority since the respondent No. 2 himself cannot confirm the same as he has conducted the proceedings of sale. The confirmation of sale should be made by the person who has not conducted the proceedings of sale. ( 13 ) MR. Joshi has therefore submitted that the person who has conducted the proceedings of sale should not be the same person confirming the said sale. In the instant case, the proceedings of sale were conducted by the Special Recovery Officer and he is the person who has confirmed the sale. He has submitted that both the authorities should be different one, as, if there is any irregularity or infirmity in the proceedings conducted by the person to whom the powers are delegated to conduct the sale, the same can be rectified by his superior while deciding the issue regarding confirmation of sale. He has, therefore, submitted that under Section 179 of the Bombay Land Revenue Code, wide powers are given to the Collector either to confirm the sale or to set aside the sale. In this context, he has relied on the decision of this Court in the case of PATHUBHAI VASHRAMBHAI RAJPUT V/s. GOVERNMENT OF GUJARAT THROUGH THE SECRETARY (APPEALS) and ORS. , 2000 (4) G. L. R. 3512 wherein it is held as under :-"the Collector, when he disposes of any Government property, has to take due care to see that the State fetches adequate consideration or proper price for the same. If he comes to a conclusion that the price fetched by the State is not adequate, it becomes his bounden duty to see that the sale is not confirmed. If he comes to a conclusion that the price fetched by the State is not adequate, it becomes his bounden duty to see that the sale is not confirmed. Moreover, no citizen has any legal or fundamental right to purchase Government property at an auction, especially when the sale is not properly effected or when the State has not received proper price or adequate consideration. In the instant case, the Collector has come to a definite conclusion that the auction was not duly advertised and there was less participation of bidders and he has also suggested that the auction proceedings were merely on paper. These facts denote that the auction was not held properly, and therefore, it was not in the interest of the State to dispose of the land in question in favour of the petitioner and for the said reason, which has been duly recorded in his order, he has not confirmed the sale in favour of the petitioner. In the instant case, the Collector has exercised his statutory power with due care. He has duly examined the proceedings of the auction and for justifiable reasons he has not confirmed the sale. No prudent officer, acting in the interest of the State, would permit the property of the State to be disposed of at a lesser price. He should make an effort to see that policy laid down by the State is followed and maximum possible price is fetched by the State while disposing of its property. In my opinion, the Collector has rightly not confirmed the sale and while doing so, he has acted well within the limits prescribed by Section 179 of the Code and has considered only relevant factors. " ( 14 ) MR. Mihir Joshi, learned advocate appearing for the petitioner further submits that the respondent No. 4 had not paid the entire sale consideration within 15 days from the date of sale and hence the sale became null and void and ineffective. He further submits that the law laid down by this Court in the case of LAXMICHAND VARDHAJI V/s. COLLECTOR OF BANASKANTHA and ANOTHER, 27 (1) G. L. R. 476 is not a good law. He further submits that the law laid down by this Court in the case of LAXMICHAND VARDHAJI V/s. COLLECTOR OF BANASKANTHA and ANOTHER, 27 (1) G. L. R. 476 is not a good law. It states that " The expression used in Sec. 174 did not mean that full amount of the purchase price has to be paid within 15 days from the date of the bid because the relevant words were 15 days from the date on which the sale of immovable property took place. Sale can be said to have taken place only when there is final acceptance of the bid and not when provisional acceptance and 1/4th amount is paid. Looking to the scheme of the Code, full amount of purchase money shall have to be paid before the expiry of the period of 15 days and in case of default, the effect thereof would take place as envisaged in Section 175 and the liability of the purchaser would arise on account of resale of the property as contemplated by Section 176 of the Code. Section 177 prescribes that every resale of property in default of payment to purchase money or after the postponement of the first sale shall be made if the issue of fresh notice in the manner prescribed for original sales. Section 178 talks about the application to set aside sale and 179 empowers the Collector to pass an order either to confirm the sale or to set aside the sale. Since the respondent No. 4 has not paid the sale consideration within 15 days from the date of the sale, the said sale is required to be set aside and the properties required to be resold. In support of his submission, Mr. Joshi relied on the decision of the Honble Supreme Court in the case of SARDARA SINGH (DEAD) BY LRS. AND ANOTHER V/s. SARDARA SINGH (DEAD) AND OTHERS, (1990) 4 S. C. C. 90 wherein it is held as under :-"the requirement of deposit contained in Sections 85, 86 and 88 of the Punjab Land Revenue Act, which are substantially the same as Order 21 Rules 84 and 85 of the Civil Procedure Code, are mandatory and failure to comply with either of them renders the entire sale null and void and non-est. Once the effect of non-payment of the amount is to render the sale non-existent, it becomes the imperative duty of the authority to re-sell the property as the purchaser forfeits all claim to the property for default of payment. Where there is no sale in the eye of law, there can be no question of applying for setting aside the sale on the ground of material irregularity under Section 91 of the Act which is analogous to Order 21 Rule 90 of the Code. No right, title or interest passes to the auction-purchasers under the sale certificate. The owner of the land was, however, required to file a suit to protect his possession as there was an imminent threat to dispossess him on the strength of the sale certificate. During the pendency of his appeal he was dispossessed and, therefore, he was required to amend the plaint and claim possession also. The suit was, therefore, clearly de hors the provisions of the Act and hence ordinarily the civil court was entitled to hear and decide the same. "once it is held that the sale was rendered null and void on the failure of Land Revenue Act, it was the imperative duty of the authorities to put the property to re-sale for the law did not confer any discretion in the concerned authorities to extend the time for the payment of the balance amount. The authority, therefore, had no jurisdiction to accept the balance money after the expiry of the period prescribed by Section 88. " ( 15 ) MR. A. J. Patel with Ms. Roopal R. Patel, learned advocate appearing on behalf of respondent Nos. 2 and 3 have submitted that before approaching this Court, the petitioner in S. C. A. No. 1448/03 has availed of alternative statutory remedy to ventilate his grievance and preferred a Revision Application before the learned Special Secretary (Disputes), Revenue Department, Ahmedabad on 10. 2. 2003 and raised all the contentions which are raised in the present petition. The petitioner has also prayed for stay against the implementation of the order dtd. 07. 02. 2003. However, no stay was granted by the Special Secretary. Mr. A. J. Patel has further submitted that despite the decree has been passed against the petitioners and Appeals filed against the said order and decree having been dismissed by the Tribunal, the respondent Nos. 07. 02. 2003. However, no stay was granted by the Special Secretary. Mr. A. J. Patel has further submitted that despite the decree has been passed against the petitioners and Appeals filed against the said order and decree having been dismissed by the Tribunal, the respondent Nos. 2 and 3 are justified in initiating the recovery proceedings against the petitioners. Mr. Patel has further submitted that while exercising powers under Section 152 of the Bombay Land Revenue Code, respondent No. 2 had issued notices to the petitioner by RPAD on 01. 02. 2001, 30. 08. 2001, 12. 09. 2001 and 28. 09. 2001 and had also affixed the said notices on the premises of the petitioner which is evident from the Panchnama drawn on the spot. It is only after issuance of such notices, the order of attachment was passed on 05. 10. 2001 and thereafter an order dtd. 16. 01. 2002 was passed to sell the said property which was duly served on the petitioner. Mr. Patel has further submitted that it is true that initially, upset price was fixed at Rs. 92,70,000/=. But since no one has shown any interest to purchase the said property, the City Deputy Collector was contacted on 22. 10. 2001 and City Deputy Collector vide his order dtd. 25. 07. 2002 revised the upset price of the property to be Rs. 67,54,182/=. The said price was fixed by the City Deputy Collector on the basis of the Jantri price of the property. On the basis of that revised price, fresh notification dtd. 20. 08. 2002 was published in "jansatta" and the auction was held on 27. 09. 2002. Out of the two parties, respondent No. 4 had offered Rs. 68,00,000/= and the same being highest offer was accepted by the respondent No. 2 and 25% of the said offer i. e. Rs. 17,00,000/= was paid by the respondent No. 4 on the very same day as per one of the conditions of the auction. The respondent No. 2 thereafter passed an order on 17. 01. 2003, accepting the bid of the respondent No. 4 who had offered highest amount and informed him to pay the balance amount within 15 days from the date of the receipt of the said letter. Accordingly, respondent No. 4 had paid the balance amount of Rs. 51,00,000/= by two cheques dtd. 31. 01. 01. 2003, accepting the bid of the respondent No. 4 who had offered highest amount and informed him to pay the balance amount within 15 days from the date of the receipt of the said letter. Accordingly, respondent No. 4 had paid the balance amount of Rs. 51,00,000/= by two cheques dtd. 31. 01. 2003 drawn on Vijay Co-operative Bank Limited, Naroda Branch, Ahmedabad each of Rs. 25,50,000/=. The respondent No. 2 thereafter handed over the possession to respondent No. 4 on 01. 02. 2003 and the order was passed on 07. 02. 2003. Pursuant to the said order, Regd. Sale Deed was executed on 11. 02. 2003 and thus the sale of the said property has become final. Mr. Patel has, therefore, submitted that the petitioner has no right to file the present petition and to challenge the auction proceedings taken by the respondent No. 2 for recovery of the dues of the respondent No. 3 Bank. ( 16 ) MR. Patel has further submitted that there was no irregularity or fraud committed by any one as alleged by the petitioners. With regard to the petitioners contention about a part of the premises being rented premises, Mr. Patel has submitted that the property was mortgaged with the respondent No. 3 Bank and it was never known to the respondent No. 3 about the alleged tenancy of the said property. He has further submitted that the alleged tenants filed Suits before the City Civil Court wherein stay interalia granted was vacated by the City Civil Court. Mr. Patel has further submitted that even if there is some irregularity committed by the respondent No. 2, it has not caused any substantial loss to the petitioner. He has further submitted that the petitioner has not offered at any point of time to repay the dues of the respondent No. 3 Bank when the possession was taken after following due procedure of law. The petitioner has raised all these technical grounds to restore the possession of the said property, but has never expressed his willingness to repay the outstanding amount. He has, therefore, submitted that there is no equity on the part of the petitioner which entitles him to claim any relief from this Court. Mr. The petitioner has raised all these technical grounds to restore the possession of the said property, but has never expressed his willingness to repay the outstanding amount. He has, therefore, submitted that there is no equity on the part of the petitioner which entitles him to claim any relief from this Court. Mr. Patel has further submitted that the petitioner has invoked the extraordinary writ jurisdiction of this Court, but looking to the issues involved in the present petition, they require detail probing which cannot be done under Article 226/227 of the Constitution of India. Lastly, Mr. Patel has submitted that the petition being misconceived, vexatious and frivolous, which is required to be dismissed with cost. ( 17 ) SIMILARLY, with regard to S. C. A. No. 1462/03, Mr. Patel has submitted that the said petition is also not tenable as the petitioners have already availed alternative remedy and filed Civil Suits before the City Civil Court, Ahmedabad. Moreover, the fact regarding tenancy was not disclosed to the respondent No. 3 Bank. Mr. Patel has further submitted that the petitioners were aware about attachment, auction and sale proceedings being initiated by the respondent No. 2. Mr. Patel has further submitted that the petitioner No. 3 had submitted a pursis withdrawing its right to press for the stay in the Civil Suit filed by the petitioner No. 3. It was further submitted that the petitioners have failed to obtain any stay in their favour. He has lastly submitted that the petition filed by the tenants is nothing but the abuse of process of law as the landlord and tenants in any case had joined hands in glove to defeat the legitimate recovery of the dues of the respondent No. 3 especially when the possession was already handed over to the respondent No. 4, after following due procedure of law and hence, this Court should not entertain the said petition filed by the petitioners - tenants. ( 18 ) THE learned AGP appearing for respondent No. 1 and Mr. Utpal M. Panchal, learned advocate appearing on behalf of the respondent No. 4 in both the petitions have adopted the arguments canvassed by Mr. A. J. Patel, learned advocate appearing on behalf of respondent Nos. 2 and 3. ( 19 ) MR. A. J. Patel, learned advocate appearing on behalf of the respondent Nos. Utpal M. Panchal, learned advocate appearing on behalf of the respondent No. 4 in both the petitions have adopted the arguments canvassed by Mr. A. J. Patel, learned advocate appearing on behalf of respondent Nos. 2 and 3. ( 19 ) MR. A. J. Patel, learned advocate appearing on behalf of the respondent Nos. 2 and 3, on the other hand, submitted that there was no material irregularity found in the order of the Special Recovery Officer either conducting and/or confirming the sale. He has further submitted that inadequacy of price is not the ground for setting aside the sale. In this context, he relied on the decision of the Honble Supreme Court in the case of RADHY SHYAM V/s. SHYAM BEHARI SINGH, A. I. R. 1971 SUPREME COURT 2337 wherein it is held as under :-"in order to set aside an auction sale mere proof of a material irregularity such as the one under Rule 69 and inadequacy of price realised in such a sale, in other words injury, is not sufficient. What has to be established is that there was not only inadequacy of the price but that that inadequacy was caused by reason of the material irregularity or fraud. A connection has thus to be established between the inadequacy of the price and the material irregularity. " ( 20 ) MR. Patel has further submitted that because of the reduction in price, no substantial injury was caused to the petitioner and it was not pointed out as to how the petitioner was adversely affected because of such reduction in price. In this context, he relied on the decision of the Honble Supreme Court in the case of JASWANTLAL NATVARLAL THAKKAR V/s. SUSHILABEN MANILAL DANGARWALA AND OTHERS, A. I. R. 1991 SUPREME COURT 770 wherein it is held as under :-"under O. 21, R. 90 of C. P. C. , it is not sufficient for the appellant to contend that there was an illegality or irregularity in the conduct of the sale, he must also prove by adducing sufficient facts that some substantial injury has been caused to the petitioner as a result of the order under O. 21, R. 72 having been passed without such notice. " .