SULTAN SINGH Vs. M P CO OPERATIVE TRIBUNAL

JUDGEMENT

(1.) IN this petition under Article 227 of the Constitution of India, the petitioners have challenged the impugned order (Annexure P-6) dated 26.11.2001, passed by the M.P. State Co-operative Tribunal, Bhopal, whereby allowed the revision filed by the respondents No. 2 & 4, against the order dated 5.8.1998, passed by the Joint Registrar, Co-operative Societies in Revision No. 38/97.

(2.) THE following facts are not in dispute : Respondent No. 3, Bhagwansingh is the original owner of the land. He took loan and mortgaged the suit land in favour of the respondent No. 4-Bank. During the enforcement of mortgage the respondent No. 3, sold part of the land of survey No. 552/1/5/1 in area of 1.25 hectares to the petitioners. Subsequently, in the year 1997, the respondent-Bank auctioned the said land against the dues of their loan and the same was purchased by the respondent No. 2, who is auction-purchaser. The sale was confirmed on 7.5.1997 and, thereafter, sale certificate was issued on 5.6.1997, which was also registered on the same day. Thereafter, possession was also handed over to the auction purchaser by Patwari on

(3.) HAVING heard the learned counsel for the parties and after perusal of the impugned order of the Tribunal I am of the view, the learned Tribunal has rightly set aside the order passed by the Assistant Registrar on injunction application in a dispute under section 64 of the Cooperative Societies Act and also the order, passed in revision, by the Joint Registrar, confirming the order passed by the Assistant Registrar. The Tribunal has observed that when the property was mortgaged with the respondent-Bank, the original owner-respondent No. 3 was not having any right to sell the same to the petitioners and the sale is, therefore, void. This finding of the Tribunal is based on appreciation of the provisions of Section 40 of the M.P. Bhumi Vikas Bank Adhiniyam, 1966 (for short 'the Adhiniyam'). Sub-section (2) of section 40 of the Adhiniyam provides that no person shall transfer any property, which is subject to a charge under Sub-section (1) except with previous permission, in writing, of the Society, which holds the charge. Sub-section (3) of section 40 further provides that:' 'Notwithstanding contained in any law for the time being in force any transfer of property made in contravention of the provisions, sub-section (2) shall be void as against any claim of the Society, in respect of any debt or outstanding demand owing to it, which is a first charge on such property under sub-section (1)".