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2010 DIGILAW 1193 (CAL)

Ghanshyam Agarawal v. Secretary (Revenue)

2010-09-15

KALIDAS MUKHERJEE

body2010
JUDGMENT Kalidas Mukherjee, J. 1. THIS is a writ petition under Article 226 of the Constitution of India filed by writ petitioner. The case of the petitioner, in short, is that he has purchased a property bearing Survey No. 75/2/3 measuring 600 Square meters situated at Austinabad, Port Blair, from the respondent no.4 in auction sale. The respondent no.4 issued sale certificate and thereafter the petitioner approached the Tehsildar for mutation in his name. The Tehsildar asked the petitioner that the application be submitted by the bank. Accordingly, the Bank, that is, respondent no.4 submitted the application requesting the Tehsildar to mutate the property bearing survey no. 75/2/3 measuring 600 square meters, situated at Austinabad in favour of the petitioner being the auction purchaser. No action was taken by the Tehsildar and the writ petition was filed before this Court which was disposed of directing the Tehsildar to consider the application for mutation and to take steps for mutating the property in favour of the petitioner within three weeks from the date of communication of the order. 2. The Tehsildar thereafter passed the impugned order refusing to mutate the property in the name of the petitioner on the grounds that no sale deed had been presented and no permission for transferring the property was granted. On such grounds, the Tehsildar held that the request for mutation could not be acceded to. Being aggrieved by the said order passed by the Tehsildar, the instant application has been filed. It is contended by Mrs. Nag that auction was held on 18.12.2008. The sale certificate was issued on 9.2.2009 and the application for mutation in favour of the petitioner was filed on 13.2.2009 by the Bank. It is contended by Mrs. Nag that in case of sale certificate, no registration is required under Section 17(2)(xii) of the Indian Registration Act. It is contended that the auction sale was held by Registrar of Cooperative Societies, who is a government officer in the Civil Department. 3. MRS Nag submits that permission from Deputy Commissioner for effecting sale was not necessary in view of the provisions contained in Rule 62 of the Andaman and Nicobar Islands Cooperative Societies Regulation, 1973 and the Rules thereunder. 3. MRS Nag submits that permission from Deputy Commissioner for effecting sale was not necessary in view of the provisions contained in Rule 62 of the Andaman and Nicobar Islands Cooperative Societies Regulation, 1973 and the Rules thereunder. It is contended that the requirement of permission from the Deputy Commissioner under Rule 159(9) of the Andaman And Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 is not attracted here, in as much as, the Regulation 62 clearly empowers the Registrar of Cooperative Societies to sell the property in auction notwithstanding anything contained in Chapter VIII or any other law for the time being in force. MRS. Nag thus contends that the words or any other law for time being in force also signify that the provision of Rule 159(9) of the Land Revenue and Land Reforms Regulation, 1966 would not come in the way. 4. MR. Bahadur appearing on behalf of the Bank i.e. respondent no.4 submits that registration of sale certificate is not required and the provision contained in Rule 159(9) is not attracted in view of the Regulation 62 of the Co-operative Societies Regulation, 1973 and the proviso of Rule 159(8) of the Land Revenue and Land Reforms Regulation, 1966. MR. Bahadur contends that the Tehsildar had no jurisdiction to refuse the prayer for mutation made by the Bank. Mr. Mandal submits that registration of sale certificate is not necessary. But, according to Mr. Mandal prior permission from the Deputy Commissioner for effecting sale is necessary in view of the provision contained in Rule 159(9) of the Land Revenue and Land Reforms Regulation, 1966. Mr. Mandal also submits that under Rule 128(1)(2) of the said Regulation, the Sub-Divisional Officer shall put the purchaser in possession of the property. 5. IT is clear that under the provision of Section 17(2) (xii) of the Indian Registration Act, the registration of sale certificate is not required. The Tehsildar also in his order recorded as follows:- Admittedly, as per the provisions of IR Act 1908, registration of sale certificate is not necessary But the Tehsildar refused to mutate in favour of the name of the petitioner on the ground that no sale deed has been presented and no permission for transferring the property was granted. 6. The Tehsildar also in his order recorded as follows:- Admittedly, as per the provisions of IR Act 1908, registration of sale certificate is not necessary But the Tehsildar refused to mutate in favour of the name of the petitioner on the ground that no sale deed has been presented and no permission for transferring the property was granted. 6. NEEDLESS to say that in the case of an auction purchaser in a public auction as was done in this case, the sale certificate issued in favour of the petitioner is as good as the sale deed. In other words, it operates as sale deed which is exempted from registration under Section 17(2)(xii) of the Indian Registration Act. As regards, the permission from Deputy Commissioner as required in Rule 159(9) of the Andaman And Nicobar Islands Land Revenue and Land Reforms Regulation, 1966, we are to look into the Regulation 62 of the Andaman And Nicobar Islands Cooperative Societies Regulation, 1973, Rule 62 of the Cooperative Societies Regulation, 1963 runs as follows:- 62. Enforcement of charge:- Notwithstanding anything contained in Chapter VIII or any other law for the time being in force but without prejudice to any other mode of recovery provided in this Regulation, the Registrar or any person subordinate to him empowered by the Registrar in this behalf may, debt on the application of a co-operative society, make an order directing the payment of any debt or outstanding demand due to the society by any member or past or deceased member, by sale of the property or any interest therein, which is subject to a charge under section 31: Provided that no order shall be made under this section unless the member, past member or the nominee, heir or legal representative of the deceased member, has been served with a notice in the prescribed manner and has failed to pay the debt or outstanding demand within seven days from the date of such notice. 7. IT is significant to note here that Regulation 62 is applicable, notwithstanding anything contained in Chapter VIII which provides for settlement of disputes by way of arbitration or any other law for the time being in force. I lay stress upon the words or any other law for the time being in force. 7. IT is significant to note here that Regulation 62 is applicable, notwithstanding anything contained in Chapter VIII which provides for settlement of disputes by way of arbitration or any other law for the time being in force. I lay stress upon the words or any other law for the time being in force. IT is worth mentioning here that the provision contained in Regulation 128(1) (2) of the Land Revenue and Land Reforms Regulation, 1966 as referred to by Mr. Mandal, relates to realization of land Revenue which has no manner of application in the facts of the instant case. Regulation 62 of the Cooperative Societies Regulation, 1973 by virtue of the words or any other law for the time being in force clearly shows that it will prevail despite what has been stated in Regulation 159(9) of the Andaman And Nicobar Islands Land Revenue and Land Reforms Regulation, 1966. In other words Regulation 62 of the Andaman And Nicobar Islands Cooperative Societies Regulation, 1973 is an exception to the requirement as mentioned in Regulation 159(9) of the Andaman And Nicobar Islands Land Revenue and Land Reforms Regulation, 1966. 8. IT is significant here that proviso to Regulation 159(8) of the Andaman And Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 also provides that the Bank can sell the interest in the property for recovery of loan in execution of decree or order of any Court. In the instant case, it appears from Annexure P-3 to the writ petition that the arbitration proceeding was initiated by the Bank bearing No. ARC No.359/03-04 and 360/03-04. IT further appears that the award was made on 27.01. 2006 and the EP No. 359/03-04 was filed on 20.03.2006 and the Sale Officer, Registrar of Cooperative Societies Department, South Andaman after observing various formalities as required under the Regulation and Rules, auctioned the property and the petitioner purchased the same. The sale certificate was also issued under Sub-Rule 14(IV) of Rule 76 of Andaman And Nicobar Island Cooperative Societies Rules, 1974. Under the proviso to Regulation 159(8) the Bank is also competent to sell the property for the recovery of loan. In view of the discussion made above, I find that the prior permission from the Deputy Commissioner as mentioned in Regulation 159(9) of the Andaman And Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 is not required in the instant case. In view of the discussion made above, I find that the prior permission from the Deputy Commissioner as mentioned in Regulation 159(9) of the Andaman And Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 is not required in the instant case. Having heard the learned counsel of the parties and on perusal of materials on record, the order passed by the Tehsildar is quashed. The respondent no.3 is directed to mutate the property in question in favour of the petitioner herein within two months from this date. 9. The writ application is allowed. There will be no order as to costs. 10. URGENT photostat certified copy, if applied for, be made over to the parties as early as possible.