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2012 DIGILAW 1243 (BOM)

Tarun Chhanalal Shah v. State of Maharashtra

2012-07-10

A.M.KHANWILKAR, A.R.JOSHI

body2012
Judgment :- P.C. 1. Heard counsel for the parties. For considering the submissions canvassed by the learned Counsel for the petitioner across the Bar, we deem it appropriate to reproduce the relief claimed in this petition, which reads thus:- “(a) that this Hon'ble Court may be pleased to direct the Respondents to ensure that the Petitioner is restored back to the possession of the same flat, being Flat No.503 Gamdevi Deepak Co-operative Housing Society, 12 Kashibai Navrang Marg, Gamdevi, Mumbai – 400007 which has been auctioned and/or in the alternative, he be given compensation in lieu thereof or alternatively, the respondents be directed to hand over another flat in the same area/vicinity having 1000 sq. ft. area and similarly he be also compensated for the loss of 420.210 grams of gold, 14 kg. of silver and 14.95 Ct. of diamonds as this Hon'ble Court may deem fit and proper;” 2. This Petition under Article 226 of the Constitution of India has been filed in the following circumstances: The petitioner claims that he had purchased the property referred to in the prayer clause in the year 1988 jointly with his wife. The property was jointly owned by the petitioner and his wife. The petitioner was named as an accused in respect of criminal case punishable for offence – amongst other under the provisions of the MCOC Act. As the petitioner was absconding, the trial court Judge has had no option but to resort to measure under Section 82 of the Code of Criminal Procedure, 1973. He passed a formal order for issuing proclamation against the petitioner. On the basis of the said order, proclamation notice dated 16th April, 2001 was published in the local newspaper on 25th April, 2001. The said proclamation notice expected the petitioner to appear before the Court on or before 30th April, 2001. The petitioner's wife, who asserted to be a joint owner of the flat in question, admittedly, filed Writ Petition before this Court challenging the proclamation notice and the proposed action to be taken by the Court in respect of the subject flat. That writ petition, being Criminal Writ Petition No.619 of 2001, however, was withdrawn on 16th July, 2002. Thereafter, the petitioner's wife moved an application before the Registrar of the MCOC Court on 24th December, 2002 for furnishing certain documents. That writ petition, being Criminal Writ Petition No.619 of 2001, however, was withdrawn on 16th July, 2002. Thereafter, the petitioner's wife moved an application before the Registrar of the MCOC Court on 24th December, 2002 for furnishing certain documents. The trial court, however, proceeded with the auction of the property on 6th January, 2003. The petitioner's wife thereafter filed an application before the trial Court on 7th January, 2003 for challenging the proclamation issued in respect of the subject flat. The petitioner, however, surrendered before the concerned Court only on 30th November, 2004 by which time the property in question was already auctioned in favour of respondent No.8 being the highest bidder. The petitioner eventually was acquitted in the criminal case on 1st June, 2010. It is only thereafter the petitioner has considered it appropriate to file the present writ petition on 26th September, 2011. 3. The first difficulty before the petitioner is about the delay and laches in filing of the present writ petition. The petitioner is seeking relief of restitution of possession of his flat. However, what has been completely glossed over is that the flat is already auctioned and the title has passed on in favour of the third party i.e. respondent No.8 as back as in January, 2003. Respondent No.8 has been put in possession of the said property upon payment of full consideration being the highest bidder. It is too late in the day for the petitioner to make grievance about the illegality, much less, any irregularity committed in issuance of proclamation notice and the consequent auction sale of the property and its confirmation. 4. The second difficulty before the petitioner is that the petitioner has advisedly sought relief only of restitution of possession without challenging the order passed by the trial Court in exercise of powers under Section 82 of the Code nor the petitioner has challenged the proclamation notice published pursuant to the order passed by the trial Court. Moreover, the petitioner has not even challenged the action of auction conducted consequent to proclamation notice in respect of the subject property nor has he challenged the auction sale confirmation. Moreover, the petitioner has not even challenged the action of auction conducted consequent to proclamation notice in respect of the subject property nor has he challenged the auction sale confirmation. The argument on behalf of the petitioner, however, is that it is not necessary for the petitioner to challenge any of these actions and it is enough for the petitioner to point out that there was palpable illegality committed by the Court in issuing publication of proclamation notice dated 16th April, 2001. The argument proceeds that the proclamation notice as published on 25th April, 2001 expected the petitioner to report to the Court before 30th April, 2001 – which is within less than 30 days notwithstanding the mandate in subsection (1) of Section 82 of the Code. In support of this submission reliance has been placed on the decisions of the Punjab and Haryana High Court in the case of PritamKaur and anr. v. State of Punjab through Secretary Local Self-Government 1967 Cri.L.J. 1120, AND Pal Singh Santa Singh v. State 1955 Cr.L.J. 318 ( in particular paras 4, 5 & 17 thereof). In our opinion, the dictum in these decisions will be of no avail to the petitioner. Further, the argument is untenable. As aforesaid, firstly, because of laches and unexplained delay and more particularly because the petitioner has not challenged the order of the trial Court directing issuance of proclamation notice and the proclamation notice itself including auction sale conducted in respect of the subject property and confirmation thereof. 5. The next argument of the petitioner is that the petitioner was not the exclusive owner of the property, but, it was in joint ownership with his wife. Even this argument does not take the matter any further. As a matter of fact the wife of the petitioner made unsuccessful attempt to challenge the proclamation. However, having withdrawn the writ petition and more importantly having allowed the notice of proclamation of sale and the consequent auction sale of the property and confirmation thereof to attain finality, neither the wife nor the petitioner can be permitted to raise the plea under consideration. Further, unless the petitioner is able to overcome the hurdle of laches and unexplained delay, the petitioner cannot succeed. More importantly the petitioner has not challenged the order of the trial Court directing issuance of proclamation notice and the proclamation notice itself and the auction sale confirmation thereof. Further, unless the petitioner is able to overcome the hurdle of laches and unexplained delay, the petitioner cannot succeed. More importantly the petitioner has not challenged the order of the trial Court directing issuance of proclamation notice and the proclamation notice itself and the auction sale confirmation thereof. We fail to understand as to how the petition can succeed for the limited relief claimed in this petition which has been reproduced hitherto. 6. The next argument on behalf of the petitioner is that the petitioner had surrendered before the trial Court and upon surrendering, the property should have been returned back to him. In support of this submission, reliance is placed on the decision of the Apex Court in the case of Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and others, (2008) 4 Supreme Court Cases 649 (in particular para 32). This argument completely overlooks that in the present case the auction of the property was conducted much prior to the petitioner's surrendering before the trial Court. The auction was conducted on 6th January, 2003 and the property was transferred in favour of the auction purchaser being the highest bidder upon confirmation of auction sale. The auction purchaser has been put in possession much before the petitioner's surrender on 30th November, 2004. The exposition in the case of Vimlaben(supra), therefore, is of no avail to the fact and situation of the present case. 7. At this stage the Counsel for the petitioner submits that the respondents be directed to at least hand over the sale proceeds of the auctioned property to the petitioner. That is not the relief before us. Petitioner is free to pursue that relief before the appropriate Court which will consider the same on its own merits in accordance with law including the stipulation contained in section 85 of the Code. We are not expressing any opinion thereon one way or the other. 8. In our opinion, therefore, the petition is devoid of merit and the same deserves to be dismissed. Hence, petition is dismissed.