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2006 DIGILAW 886 (PAT)

Santosh Kumar Sah v. Union Of India

2006-09-21

NAVANITI PRASAD SINGH

body2006
Judgment 1. Heard the parties. 2. The private respondents have appeared and filed counter affidavit. A rejoinder thereto has been filed by the petitioner. The Bank Certificate holder is present. 3. The present writ application was filed by the petitioner challenging the order passed in appeal by the Presiding Officer, Debt Recovery Tribunal, Bihar, Patna. He has set aside the proclamation of sale and consequently the sale as made by the Recovery Officer, D.R.T., Bihar, Patna, in respect of the properties which the petitioner had purchased. The grievance of the petitioner is that after reading the sale proclamation in respect of the properties in question he filed his tender before the Recovery Officer, D.R.T. He being the only bidder for the property his bid was accepted and the property was sold for Rs. 42,000/-. The respondent to whom the property belonged objected to an protested. The same was rejected by the Recovery Officer and the sale was confirmed. Against this the respondent filed an appeal before the Presiding Officer, D.R.T. as provided under the Act and rules framed thereunder. In the said appeal the petitioner was not made a party as the statutory format for filing the appeal did not so provide. The Bank was noticed by the Presiding Officer in appeal. It filed its opposition but ultimately at the time of hearing no one appeared on behalf of the Bank, the Presiding Officer held that the proclamation for sale was misleading and had led to inadequate deposit which vitiated the entire proceeding and set aside the sale. The petitioner has challenged the same on the ground that the sale made and confirmed in his favour could not be set aside by the Presiding Officer without granting him opportunity of hearing. Admittedly, he was not a party to the appellate proceeding. Secondly, it is submitted that in sale proclamation undoubtedly there was an error with regard to the area of land but that is not material as the boundary has been clearly given. 4. On the other hand, the counsel for the private respondents whose land has been sold submitted that the property is a valuable property and deliberately in the advertisement notifying proposed sale the area of land was given as 100 hectares instead 0.01 hectare. In other words, the area as advertised was about 250 acres instead of about 0.025 acres. 4. On the other hand, the counsel for the private respondents whose land has been sold submitted that the property is a valuable property and deliberately in the advertisement notifying proposed sale the area of land was given as 100 hectares instead 0.01 hectare. In other words, the area as advertised was about 250 acres instead of about 0.025 acres. Normally, no person would give a second thought to the sale proclamation in respect of land about 250 acres whereas if it was correctly specified as about 0.025 acres lot of people would have got interest. It is, therefore, submitted that the notification itseif being vitiated all proceedings stand vitiated. It is further submitted that because of this reason only one person turned up to protest and that too at a petty price of Rs.42,000/-. 5. It was further submitted on behalf of the respondents that as in the format provided for filing memorandum of appeal the only authorities who were required to be made parties were the Certificate holder and Certificate debtor. He has done so. There being no requirement of making the petitioner a party the petitioner had no right to appeal and of hearing. 6. Lastly, it was submitted that if this Court found that the appellate order was liable to be set aside as being erroneous and/or illegal the auction itself, being erroneous or illegal should be set aside. In other words, it is submitted that if by setting aside an illegal order any illegal order is revived then the Court should either set aside both the orders or not interfere with the orders. For this proposition he has referred to a Division Bench judgment of this Court since reported in P.L.J.R. 1990(2) Page 616 in the case of Naya Dawakhana V/s. The State of Bihar & Ors. 7. Having considered the matter it is first to be seen as to whether the sale proclamation issued was correct or not. The same is annexed as Annexure-1. The area of land in question is clearly shown to be 100 hectares. Even if someone was to take it that was wrong. lt would not have drawn his attention as to what was the right area. The same is annexed as Annexure-1. The area of land in question is clearly shown to be 100 hectares. Even if someone was to take it that was wrong. lt would not have drawn his attention as to what was the right area. The object of issuing a sale proclamation in newspaper is to give it a wide publicity to get as many as tenderers as possible so that the auction process may be meaningful and not a ritual. Merely because a property is put to auction for realisation of dues through process of Court, does not mean that it should be mechanically sold. Of course, it goes without saying that in such matters of sale the price not being the true market price but as has been held by the Apex Court in several decisions that the price should not be illusionary or shockingly low. That is the whole object of making the proper publication. ln the present case it is clearly to be noticed that the very object of sale notification being issued in newspaper stands vitiated by mentioning wrong area description of the property. That being so, it must follow that the auction itself stood vitiated. 8. So far as the question of petitioner not being a party in the appellate proceedings is concerned, suffice to say that a valuable right of the petitioner that was involved. The petitioner had purchased the property in auction conducted by the Recovery Officer, D.R.T. He had got a Sale Certificate in his favour. Sale confirmation was also done in his favour, yet when the sale was set aside he was not granted an opportunity of hearing. 9. It has been held by the Apex Court in the case of National Textile Workers Union V/s. P.R. Ramakrishnan & Ors. since reported in A.l.R. 1983 Supreme Court Page 75 that even though a statute may not provide for hearing of a party interested unless the statute excludes them specifically they have a right of hearing. In that case a winding up application was heard before the Company Judge in the original jurisdiction of the Calcutta High Court, in the winding up application National Textile Workers Union wanted to intervene and to be heard. In that case a winding up application was heard before the Company Judge in the original jurisdiction of the Calcutta High Court, in the winding up application National Textile Workers Union wanted to intervene and to be heard. The learned Company Judge refused such hearing because with reference to the provision of Company Act and the Company Court Rules he was of the view that the parties who were required to be noticed and heard was defined but Workers Unit was not such a person. He declined to grant leave to the Workers Union to be heard. The matter was carried to the Apex Court. The Apex Court held that in matters of winding up and with reference to the matters in question where rights of workers of an Unit. being wound up in question was involved they have every right to be heard. In that view of the matter, the objection of the petitioner to the appellate order is well taken and the appellate order cannot be sustained. 10. The position is that this Court finds that the initial order of sale is vitiated so is the appellate order. If the appellate order alone is set aside it will automatically revive illegal sale order. In that view of the matter, in view of the judgment of this Court as referred to above. l decline to interfere with the order impugned. 11. This writ application is thus, dismissed.