THE HON'BLE SRI JUSTICE A.V. SESHA SAI WRIT PETITION No.21922 of 2005 Between:
Arun Kumar Dama PETITIONER AND
1. The Sales Officer –I, Office of the Dy. Registrar, Cooperative Societies/OSD, Vasavi Cooperative Urban Bank Ltd., Malakpet, Hyderabad, and others.
RESPONDENTS ORDER:
This writ petition is filed seeking a Writ of Certiorari calling for the records pertaining to E.P.Nos.62 to 72 of 2003, E.P.No.38 to 42 and 167 and 168 of 2003 and to quash the same by holding that the 1st respondent has no jurisdiction to pass any such order.
2. Heard Smt. D. Pramada, learned counsel for the petitioner and learned Government Pleader for Cooperation.
3. According to the petitioners, one Smt. B. Narasamma and others owned the land admeasuring 7830 sq. yds., with house bearing No.1-11-250 in Sy.Nos.53/5 and 89/1 situated at Shyamlal Building, Begumpet, Hyderabad and they acquired the said property by virtue of a registered Will deed bearing document No.147/64 dated 17.02.1964. It is further averred in the writ affidavit that on an offer made by the said persons to sell an extent of 500 sq. yds., out of the said property, the petitioner agreed to purchase the same and paid the entire amount of Rs.5,00,000/- and after the mutual negotiations a written agreement of sale was also entered into on 23.09.1995. It is further stated that in view of non-cooperation of the said persons to execute the sale deed, the petitioner was constrained to file O.S.No.313 of 1998 on the file of the Court of III Senior Civil Judge, Secunderabad, for specific performance of agreement of sale and the learned Judge by virtue of the judgment and decree dated 15.07.1999 directed the petitioner’s vendors to execute registered sale deed in respect of the said property and to deliver the vacant possession. It is further stated in the writ affidavit that thereafter, the petitioner filed E.P.No.130 of 1999 before the learned III Senior civil Judge, Secunderabad, seeking execution of sale deed and delivery of possession, and a draft sale deed was also filed and the same was approved, and the sale deed was also engrossed on the stamp papers and the same is under registration. It is the case of the petitioner that at that point of time the petitioner came to know of the attachment obtained by the 2nd respondent and contemplation to sell the property.
4. In the above background, the petitioner filed E.A.No.1 of 2004 before the Sale Officer-I, Office of the Deputy Registrar of Cooperative Societies under Rule 52 (21)(a) of the A.P. Cooperative Societies Rules, 1964 (hereinafter called ‘the Rules’), claiming the property. The Sale Officer-1st respondent herein by virtue of the judgment dated 26.06.2004 passed an order, dismissing the claim application filed by the petitioner. Challenging the said judgment passed by the 1st respondent, the present writ petition has been filed.
5. Though Rule Nisi was issued by this Court as long back as on 3.11.2005, no counter affidavit has been filed by the respondents so far.
6. The petitioner filed the claim petition under Rule 52(21)(a) of the Rules. As per the said provision of law, when a claim is preferred or any objection is made to attachment of any property, the officer shall investigate the claim or objection and dispose it of on the merits. Proviso to the said Rule 52 (21)(a) also authorises the sale officer to refuse the investigation, if the objection or claim is frivolous. Rule 52 (21)(c) in a categorical and clear terms stipulates that when a claim or an objection is preferred that party against whom an order is made may institute a suit within six months from the date of the order to establish the right, which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive.
7. In the instant case, the sale officer passed the impugned order rejecting the claim of the petitioner and as such, as per the above provision of law, the petitioner ought to have instituted a suit to establish his title over the property, instead, he filed the present writ petition questioning the validity of the order passed by the sale officer, which is not maintainable. Therefore, I am not inclined to go into the merits and demerits of the matter. In the considered opinion of this Court, when such an alternative remedy of suit is available, this Court cannot go into the dispute with regard to the title to the property.
8. For the aforesaid reasons and having regard to the provision of law referred to above, this writ petition is dismissed without expressing any opinion on merits, however, with a liberty to the petitioner to avail the remedy under Rule 52(21)(c) of the Rules, if he so chooses, within a period of three months from the date of receipt of a copy of this order.
JUSTICE A.V. SESHA SAI.
23rd July, 2014 Js.