KANHAIYALAL Vs. BOARD OF REVENUE M P GWALIOR

JUDGEMENT

(1.) THE respondent No. 3 Society obtained an award against the petitioner for the recovery of a certain sum of money under the M. P. Co-operative Societies act, 1960 (hereinafter referred to as the Act ). Thereafter, the society applied for its execution according to Clause (c) of Section 85 of the Act. The recovery officer respondent No. 5 proceeded to execute the award in accordance with the rules contained in Chapter X in M. P. Co-operative Societies Rules, 1962 (hereinafter referred to as the Rules ). The petitioner's interest in certain agricultural lands was consequently attached and the sale proclamation (Annexure A) dated 19-4-1968 was issued. The sale was held on 25-5-1968 at which respondent No. 2 Ashok Kumar was the highest bidder. As required by clause (g) of Sub-rule (2) of Rule 66 of the Rules, the respondent No. 2 deposited 25% of the purchase money at the time of the purchase and the remainder of the purchase money was also deposited by him within fifteen days from the date of sale as required by Clause (h) of Sub-rule (2) of Rule 66 of the rules. There is no dispute that the further requirement of depositing the amount required for the general stamp for the sale certificate in accordance with Clause (h) was not complied with by respondent No. 2 even upto 30 days from the date of sale. The sale was consequently set aside for non-deposit of the amount required for the general stamp for the sale certificate by the recovery Officer vide Order dated 7-6-1969 (Annexure B ). An appeal to the joint Registrar, respondent No. 4, by respondent No. 2 was dismissed. A second appeal by respondent No. 2 the Board of Revenue was allowed by an order dated 31-1-1972 (Annexure C), taking the view that the sale was not vitiated for non-compliance of this requirement contained in Clause (h) of Sub-rule (2)of Rule 66.

(2.) THE petitioner claims a writ of certiorari to quash the order dated 31-1-1972 (Annexure C) passed by the Board of Revenue.

(3.) SHRI S. D. Sanghi, learned counsel for the petitioner contends that the requirement of depositing the amount required for the general stamp for the sale certificate in accordance with Clause (h) is mandatory and on failure to comply with the condition, the sale is a nullity which results automatically in a resale of the immovable property. He argues that the construction of the statutory provisions made by the Board of Revenue is erroneous and it discloses an error of law apparent on the face of the record on account of which the order (Annexure C) is liable to be quashed by a writ of certiorari. On the other hand, Shri R. K. Vijayvargiya, learned counsel for respondent No. 2 contends that the construction of this provision by the Board of Revenue is correct. Shri vijayvargiya further contends that there 19 no case for interference under article 226 of the Constitution of India since there has been no failure of justice and there has been delay of about six months in filing this petition. He also relies on the averments made in para. 9 of the return which says that the petitioner entered into an agreement of sale with the respondent No. 2 after obtaining a further sum of money on 22-5-1968 on account of which the petitioner is not entitled to this relief.