IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.19823 OF 2018 (CS-RES) BETWEEN:
Mr.KESHAVA M KOTIAN S/O LATE MENKA THINGHALAYA AGED ABOUT 64 YEARS SHOBHA MAHAL, KALMADY, MALPE, UDUPI TALUK. ...PETITIONER (By Sri Dr.S.ARUMUGHAM, ADVOCATE) AND:
1. THE DEPUTY COMMISSIONER UDUPI DISTRICT, MANIPAL UDUPI-576 108.
2. THE THASHILDAR UDUPI TALUK, UDUPI-576 101 3. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES RECOVERY OFFICER, KUNDAPURA DIVISION, KUNDAPURA, UDUPI DISTRICT-576 115 4. THE DEPUTY COMMISSIONER OF EXCISE, UDUPI DISTRICT, UDUPI-576 103.
5. Mr.P.M.ABUBABKAR S/O Mr.MOHAMMED PADLU SAHEB, AGED 59 YEARS, ISHA MANZIL, GUDI MAJAL MALPE UDUPI-576 108.
6. MAHALAKSHMI CO-OPERATIVE BANK LIMITED, REPRESENTED BY ITS GENERAL MANAGER MARUTHI VEETHIKA, UDUPI-576 101. ...RESPONDENTS (By Smt.H.C.KAVITHA, HCGP FOR R1 TO R4; Sri C.AMRUTHESH, ADVOCATE FOR R5; Sri.N.RAMACHANDRA, ADVOCATE FOR R6) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTICE DATED 30.04.2018 VIDE ANNEXURE-G ISSUED BY R-3 AND DIRECT R-3 NOT TO DISPOSSESS THE PETITIONER FROM THE AUCTION SALE PROPERTY IN PURSUANCE OF ANNEXURE-G WITHOUT DUE PROCESS OF LAW.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
Heard Dr.S.Armugham, learned counsel appearing for petitioner, learned Government Advocate appearing for Respondent Nos.1 to 4, Sri.Amruthesh, learned counsel appearing for Respondent No.5, Sri.N.Ramachandra, learned counsel appearing for Respondent No.6. Perused the records.
2. Petitioner has assailed notice dated 30.04.2018 (Annexure – ‘G’) and order dated 04.05.218 (Annexure – G1) issued by Respondent No.1 respectively; for quashing of the order dated 25.04.2018 (Annexure – ‘H’) passed by first respondent as well as order dated 04.05.2018 (Annexure –‘J) passed by third respondent where under the petitioner has been called upon to hand over possession of 0.32 cents of land with building situated in Sy.No.260/7A purchased in an auction held by fifth respondent herein.
3. Petitioner herein borrowed a loan from fifth respondent Bank and for securing said loan mortgaged the property bearing Sy.No.260/7A measuring 0.32 cents situated at Kodavooru Village, Udupi Taluk wherein a building comprising of twenty lodging rooms including a Bar and Restaurant was being run. On account of said loan having been declared as a Non-performing Assets, proceedings for recovery of said amount came to be initiated and property mortgaged was brought to sale by auction which came to be conducted on 10.09.2008 and same was set aside by the Deputy Registrar on 18.07.2009 and confirmed by this Court in W.P.No. 23690/2009. Creditor had also preferred W.P.No. 23196/2009, which came to be dismissed by this Court on 11.01.2010 and affirmed in W.A.No.1006/2010 and W.A.No.2433/2010 by order dated 24.08.2011. However, the successful bidder namely, fifth respondent herein filed a special leave petition before the Hon’ble Apex Court in S.L.P.(Civil)Nos.3130-30131/2012 where under the leave came to be granted and Special Leave Petition was numbered as Civil Appeal Nos.1896- 1897/2016 and said appeals filed by fifth respondent came to be allowed by judgment dated 17.11.216 (Annexure- ‘R3’) and auction sale conducted on 10.09.2008 came to be affirmed.
4. In the meanwhile, the auction sale proceedings culminating in the confirmation of auction in favour of the fifth respondent dated 10.09.2008 was challenged by the petitioner herein in W.P.No. 15388/2018. Co-ordinate Bench of this Court by judgment dated 11.04.2018 (Annexure – ‘R12’) dismissed the writ petition with an observation that proceedings for delivery of possession would be in accordance with the stipulation contained under Section 89-C of the Karnataka Co-operative Societies Act (for short ‘the Act’). The very same petitioner had also questioned the communication dated 17.02.2018 and 23.02.2018 issued by the Assistant Registrar (Co-operative Societies) (for short ‘ARCS’) and sale officer respectively in W.P.No.13578/2018 which came to be dismissed on 12.04.2018 by observing that possession of the property has to be handed over to auction purchaser and same would be in accordance with Section 89-C of the Act.
5. It is thereafter order dated 25.04.2018 – Annexure – ‘H’ came to be passed by the jurisdictional Deputy Commissioner in exercise of the power vested under Section 89-C directing possession of land in question being taken over by Tahsildar, Udupi and ARCS for being handed over to fifth respondent. On account of there being a typographical error in mentioning the Survey Number as “266/7” instead of “260/7A”, an amendment order came to be passed on 04.05.2018 (Annexure – ‘G1) correcting the typographical error and this fact has been intimated to the petitioner by third respondent by communication dated 04.05.2018 (Annexure – ‘J’) which has been called in question as already noticed herein above. It is the contention of Dr.S.Armugham, learned counsel appearing for petitioner that under the impugned order of the Deputy Commissioner he has virtually sub-delegated the power to the Tahsildar to take possession and such sub- delegation having not been provided for under the statute, namely, Section 89-C of the Act, all steps taken pursuant to same is void, illegal, abinitio and is liable to be quashed.
6. Per contra, Sri.Amruthesh, learned counsel appearing for fifth respondent would support the impugned order and contend that in the instant case, there has been no sub-delegation and the order, which is impugned in the present writ petition has been passed by the competent authority, namely, the Deputy Commissioner and it is only carrying out or implementing the order which has been directed to be carried out by the Tahsildar and as such, contention of the petitioner is liable to be rejected. Hence, he prays for dismissing the writ petition. He would also hasten to add that petitioner has been consistently avoiding and evading to comply with the directions issued by the Hon’ble Apex Court in Civil Appeal Nos.1896-1897/2016. Hence, he prays for suitable orders being passed in that regard.
7. Sri.Amruthesh, learned counsel appearing for Respondent No.6 would support the impugned orders and prays for dismissal of the writ petition.
8. Having heard the learned advocate appearing for petitioner and learned High Court Government Pleader appearing for Respondent Nos.1 to 4 and the learned advocates appearing for Respondent Nos.5 and 6 and on perusal of Section 89-C(2)(a) of the Act, it would clearly indicate that Deputy Commissioner on an application filed by the purchaser has to order for delivery of the property to be made by putting such purchaser or the-person, he may appoint to receive delivery on his behalf to be in possession of the subject property. This provision would clearly indicate that order for delivering possession will have to be passed by the Deputy Commissioner and there is no provision for sub-delegating said power, in the light of the express words found in 89-C(2)(a) of the Act empowering the Deputy Commissioner to order for delivery of possession. When facts on hand are examined, it would clearly indicate that first respondent herein, namely, the Deputy Commissioner has exercised her power under Section 89-C for passing the impugned order dated 25.04.2018 (Annexure – ‘H). Said power has neither been delegated nor ordered to be exercised by a sub-delegatee. It is only the execution of the said order which has been passed which is sought to be implemented by the Tahsildar along with ARCS which is impugned in this writ petition. Hence, contention of Dr.S.Armugham cannot be accepted and it stands rejected.
9. The consequential orders dated 04.05.2018 (Annexures –‘G1’ and ‘H’) passed by first respondent and third respondent respectively is only correcting the typographical error, namely, in the original order, which came to be passed on 25.04.2018 (Annexure – ‘G’), survey number of the subject land had been indicated or mentioned as “266/7” instead of “260/7A”, which has been ordered to be corrected or rectified. There is no error committed by Respondent Nos.1 and 3 in this regard for this Court to exercise jurisdiction either under Article 226 or under Article 227 of the Constitution of India. There being no jurisdictional error committed by either of these two respondents, exercise of extra- ordinary jurisdiction is not called for.
10. Apart from afore-stated facts, yet another fact, which cannot go un-noticed by this Court relates to order passed by the Hon’ble Apex Court rejecting the contention of the petitioner and up-holding the auction proceedings dated 10.08.2019. The Hon’ble Apex Court had observed to the following effect:
“36. Taking any view of the matter, therefore, we must hold that the High Court committed manifest error in dismissing the Writ Petitions filed by the appellant – auction purchaser challenging the decision of the Deputy Registrar (CS) dated 18th July 2009. The High Court ought to have allowed the Writ Petition as the Deputy Registrar had jurisdiction to entertain appeal against the order of confirmation of sale issued under Section 89A read with Rule 38 of the Rules;
and also because, admittedly, the debtor failed to pay the awarded amount in spite of repeated opportunities given to him from time to time. Moreover, the debtor cannot succeed in the Writ Petition filed by the auction purchaser and the Bank against the decision of the Deputy Registrar and get higher or further relief in such proceedings. Thus, the Division Bench having finally disposed of the writ appeal ought not have entertained the application preferred by the debtor in the guise of clarification and to pass any order thereon – which would enure to the benefit of debtor who is in default, having become functus officio”.
11. The fifth respondent herein who was the successful bidder in the auction held on 10.09.2008 has deposited a sum of Rs.51,50,000/- and sale made in his favour (fifth respondent) had been called in question by the petitioner herein in W.P.No.12901/2008 which came to be dismissed on 03.12.2008. Writ Appeal No.1914/2009 preferred by petitioner came to be disposed of in the light of statement made by the petitioner/appellant stating that award dated 02.01.2004 was challenged before the Karnataka Appellate Tribunal in Appeal No.419/2004 and same was pending consideration. Infact said appeal, i.e., 419/2004 also came to be dismissed on 13.04.2007 which order has attained finality and it is thereafter auction notice for auctioning the sale of mortgaged property came to be initiated. In other words, the petitioner has successfully dodged and evaded the properties to be sold by way of public auction in favour of the fifth respondent and/or deliver it to fifth respondent by raising frivolous, vexatious and false. Contentions before different Forums including this Court and was eventful time and again in obtaining interim orders of stay and thereby, preventing fifth respondent from enjoying the property which he had purchased in an auction about eleven years back after having deposited a sum of Rs.51,50,000/-. In other words, petitioner has ensured that auction sale conducted on 10.09.2008 in which the fifth respondent herein was the successful bidder would be unable to take possession of the said property for use unto himself and thereby, putting the fifth respondent rights in jeopardy for no fault of his. For these reasons, petitioner deserves to be mulcted with costs.
For afore-stated reasons, I proceed to pass the following:
ORDER i) Writ Petition is dismissed with costs.
ii) Order dated 25.04.2008 (Annexure – ‘H’) as well as order dated 04.05.2018 (Annexure – ‘G1’) passed by first respondent is upheld/affirmed.
iii) Petitioner is directed to pay fifth respondent a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) and Rs.15,000/- (Rupees Fifteen Thousand only) to the sixth respondent Bank as costs of these proceedings within four weeks from today.
In the event of said costs not being paid and affidavit to said effect being filed by fifth and sixth respondents, the Registry is directed to issue certificate certifying thereunder that fifth and sixth respondents will be entitled to recover said amount from petitioner by initiating proceedings before the first respondent for recovering the said amounts as arrears of land revenue.
SD/- JUDGE DH