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2018 DIGILAW 1773 (HP)

Kusum Lata v. Divisional Commissioner, Mandi

2018-10-01

AJAY MOHAN GOEL, SANJAY KAROL

body2018
JUDGMENT Ajay Mohan Goel, J. - By way of this appeal, the appellant has challenged judgment dated 16.03.2018, passed in CWP No. 7928 of 2010, titled as Kusum Lata versus Divisional Commissioner, Mandi & others, vide which, learned Single Judge has dismissed the petition filed by the present appellant and also directed the petitioner/appellant, not only to pay costs but also mesne profit to respondent No. 3 in terms of the judgment. 2. Brief facts necessary for adjudication of the present appeal are that appellant before this Court filed CWP No. 7928 of 2010 , laying challenge to an order passed by the Divisional Commissioner, Mandi, dated 26.02.2010, whereby learned Divisional Commissioner had dismissed an application preferred by the petitioner under Section 96 of H.P. Land Revenue Act, praying for setting aside auction sale conducted by the Registrar, Cooperative Societies/ Collector, Mandi Central Division, Mandi, HP for recovery of arrears of land revenue as also order dated 11.10.2010, again passed by the Divisional Commissioner, Mandi, under Section 97 of the Himachal Pradesh Land Revenue Act, in favour of the highest bidder, i.e. respondent No. 3 before the learned writ Court as also before this Court. 3. Appellant/Petitioner (hereinafter referred to as ''petitioner'') had raised a house loan of Rs. 4,00,000/- from H.P. State Cooperative Bank Ltd. on 29.03.2000. On account of default in repayment of the loan, the matter was referred for arbitration under Section 73 of the H.P. Co-operative Societies Act, 1968 on 18th of March, 2003. Vide order dated 11.05.2004, arbitrator directed the petitioner to pay an amount of Rs. 4,97,346/- on or before 31.05.2005 by way of monthly installments of Rs. 41,320/- each. Learned Arbitrator further held that in default thereof, Bank was entitled to realize the amount due as arrears of land revenue from the movable and immovable properties of the petitioner as also the guarantor. As the order passed by the Arbitrator was not complied with, Additional Registrar (Monitoring), exercising powers of Registrar, Cooperative Societies, HP, forwarded the case to Collector, Mandi, District Mandi, for execution of the order passed by the Arbitrator. Pursuant thereof, proclamation of sale was issued by the Collector under Section 85 of the H.P. Land Revenue Act for the sale of the estate of the petitioner. Thereafter, the property of the petitioner was auctioned on 22.05.2009 and also sold to respondent No. 3 for an amount of Rs. 12,50,000/-. 4. Pursuant thereof, proclamation of sale was issued by the Collector under Section 85 of the H.P. Land Revenue Act for the sale of the estate of the petitioner. Thereafter, the property of the petitioner was auctioned on 22.05.2009 and also sold to respondent No. 3 for an amount of Rs. 12,50,000/-. 4. Undisputedly, respondent No. 3 deposited the amount of Auction sale consideration with the authority concerned. Thereafter, on 20.06.2009, petitioner filed an application under Section 96 of the H.P. Land Revenue Act before Divisional Commissioner, Mandi, for setting aside the auction sale on the ground that material irregularities stood committed in the course of auction and sale of her property. This application was dismissed in default on 26.02.2010. Before this, in the month of September, 2009, petitioner had preferred an application to the Bank for one time settlement of the outstanding loan. On 26.03.2010, an application for restoration of the proceedings before the Divisional Commissioner was moved by the petitioner, which was received in the office of the Divisional Commissioner on 27.03.2010 and was listed on 29.03.2010. On the said date, as learned Divisional Commissioner did not find merit in the reasons so put forth by the petitioner for not appearing earlier, the application for restoration of the proceedings was dismissed for want of sufficient cause for non-appearance of the petitioner on 26.02.2010. On the application filed by the petitioner for one time settlement, on 24.02.2010 the Bank made an offer to the petitioner for one time settlement, at an amount of Rs. 6,38,880/- after waiving an amount of Rs. 1,40,402/-. This was communicated to the petitioner vide communication dated 13.07.2010. It is a matter of record that thereafter an amount of Rs. 5,33,470/- was refunded by Deputy Registrar, Cooperative Societies, Central Division, Mandi, to the petitioner vide cheque dated 11.10.2010 out of the auction amount deposited by respondent No. 3. This was followed by an application being filed by the petitioner before Divisional Commissioner, Mandi dated 19.07.2010, duly signed by her, through her counsel which was received in the office of the Divisional Commissioner, Mandi, on 20.07.2010, wherein it was mentioned that she had negotiated the issue with the bank and as per compromise, she was liable to pay an amount of Rs. 6,38,880/- and further she was entitled for refund of Rs. 6,12,220/- out of auction sale consideration. 6,38,880/- and further she was entitled for refund of Rs. 6,12,220/- out of auction sale consideration. It was also mentioned in this application that she had received an amount of Rs. 5,33,473/- by way of cheque and a sum of Rs. 77650/- was still to be paid to her by the respondent-Bank and in this background, she wanted to withdraw the appeal pursuant to the matter being amicably settled with the bank with prayer for direction to the bank to release her balance amount alongwith interest. It is in this background that on 11.10.2010, the Divisional Commissioner, Mandi confirmed the auction sale in favour of respondent No. 3. 5. Thereafter, the writ petitioner filed CWP No. 7928 of 2018 , before this Court, praying for the following reliefs:- "It is, therefore, respectfully prayed that this writ petition may kindly be allowed and reliefs to the following effects may kindly be granted by issuance of the appropriate writ or direction in favour of the petitioner and against the respondents: a) That the impugned orders dated 26.02.2010 and 11.10.2010 (Annexures P-5 and P-7) passed by the respondent No. 1 may be declared to be wrong and illegal and the same may be ordered to be quashed and set aside. b) That the sale of land and house of the petitioner conducted by the Collector on 22.05.2009 may also be declared to be illegal and contrary to the provisions of law and the same kay also be quashed and set aside. c) That the petitioner may be granted reasonable time to deposit the outstanding amount as agreed and settled in the One Time Settlement and for this purpose, the petitioner may be granted permission to sell the land through private negotiations. d) That the respondents may be burdened with the costs of this petition. e) Any other or further order as may be deemed just and proper may also be passed in favour of the petitioner and against the respondents." 6. The writ so filed by the petitioner stands rejected by the learned Single Judge vide judgment dated 16.03.2018, which stands assailed by way of this appeal. 7. We have heard learned Counsel for the parties and gone through the judgment passed by the learned Single Judge as also the records of the case. 8. The writ so filed by the petitioner stands rejected by the learned Single Judge vide judgment dated 16.03.2018, which stands assailed by way of this appeal. 7. We have heard learned Counsel for the parties and gone through the judgment passed by the learned Single Judge as also the records of the case. 8. In our considered view, there is no infirmity or perversity with the judgment passed by the learned Single Judge. It is not in dispute that during the pendency of the proceedings before the learned Divisional Commissioner, Mandi, so initiated by the present appellant, including the proceedings whereby she had made a request for recalling the order vide which her proceedings were dismissed for non-prosecution, appellant had entered into a compromise with the respondentBank and in terms of the said compromise, she had also received the balance amount which had come to her share after the adjustment of the dues of the Bank from the auction amount. In our considered view, this clearly demonstrates that filing of the writ petition was nothing but an afterthought and abuse of process of law. This is more so for the reason that it is a matter of record that pursuant to the compromise so entered into with the Bank, the appellant herself had filed an application in this regard before the learned Divisional Commissioner, wherein she had made the limited request praying for refund of amount of Rs. 77,000/- odd, which according to her, was still due to her from the respondent-bank. The findings returned by the learned Single Judge that filing of writ petition was sheer abuse of process of law probably to continue the possession of building/property, even after receiving the amount of sale consideration are absolutely correct. The appellant could not have been permitted to blow hot and cold to suit her own convenience, especially in view of the fact that she had settled the issue with the Bank and had also filed an application before the Divisional Commissioner praying for permission to withdraw the appeal itself. The original records of the proceedings which were made available before the Court on 18.09.2018 clearly and categorically demonstrate that such an application was indeed filed by the present petitioner. The original records of the proceedings which were made available before the Court on 18.09.2018 clearly and categorically demonstrate that such an application was indeed filed by the present petitioner. In this background, the findings returned by the learned Single Judge that the intent of filing the writ petition was nothing but to continue in physical possession of the property even after settling the matter with the bank and receiving whatever was due to the appellant out of auction sale consideration, cannot be faulted with. The findings so returned by the learned Single Judge are duly borne out from the records of the case. 9. We concur with the findings so returned by the learned Single Judge. As far as the alleged irregularities in the process of auction of the property of the appellant are concerned, during the course of arguments, no material irregularity or illegality in this regard could be pointed out. Even otherwise, the appellant is estopped from her own conduct from assailing the process of auction, as is evident from the narration of the facts given in the above part of the judgment. 10. Besides this, no infirmity can be attributed to the findings returned by the learned Single Judge to the effect that respondent No. 3 was entitled for mesne profits, because these findings stand duly justified by the learned Single Judge in para 20 and 21 of the judgment, wherein it has been held that despite the fact that respondent No. 3 had paid the entire sale consideration as far back as in the year 2009, yet the petitioner continued to enjoy the property and was also receiving an amount of Rs. 10,000/- per month as income from the same since then for almost a decade. Therefore, as the judgment passed by the learned Single Judge does not suffers from any erroneousness or infirmity, we dismiss this appeal as being devoid of merit with costs. The appeal is accordingly dismissed, so also pending miscellaneous application(s), if any.