SAROJ DUBE Vs. AAILDAS SINDHI

JUDGEMENT

(1.) The petitioner is an auction-purchaser of land bearing Khasra No. 28, area 4.05 hectares. The agricultural land belonged to respondent No. 1 Aaildas Sindhi. who had taken a loan from co-operative society, named. St-wa Sabha. Danch registered under the M.P. Co-operative Societies Act, 1960 (for short 'the Act'). The respondent No. 1 as borrower raised objections to the auction and sale of the land mentioned above. The objection of the borrower was rejected and a sale certificate was issued in favour of the present petitioner as the auction-purchaser. The borrower then approached the Joint Registrar of Co-operative Societies by way of an appeal under Section 77 of the Act. The appeal preferred by the borrower has allowed by order dated 10.8.1977 {Annexure M) and the auction and sale have been set aside. The auction-purchaser preferred an appeal to the Board of Revenue, which by its order dated 5.2.1988 (Annexure O) has confirmed the order of the Joint Registrar. By this petition under Article 227 of the Constitution of India, the petitioner has assailed the order of the Joint Registrar dated 10.8.1987 (Annexure M) and that of the Board of Revenue dated 5.2.1988 (Annexure O).

(2.) The learned Counsel appearing for the petitioner has read the contents of the two orders before me and made his comments in the light of the other documents on record. The Joint Registrar set aside the auction and sale on the ground that the mode of recovery of dues by sale of charged property should have been first resorted to under Section 84 of the Act and recovery proceedings started under Section 85 were not in accordance with the provisions of the Act. The Board of Revenue confirmed the order of the Joint Registrar on the grounds mentioned above. In addition, the Board of Revenue came to the conclusion that before effecting the recovery no valid notice was served on the borrower. The Society had taken a stand that proceedings under Section 84 of the Act were in fact initiated against the borrower but as the amount could not be recovered. resort to proceedings under Section 85 was made. The Board of Revenue directed the Assistant Registrar to send the record of proceedings for recovery, if any, taken under Section 84. In response thereto, a formal letter was sent by the Assistant Registrar dated 26.11.1987 (Annexure A to the petition) to the Board of Revenue. By that letter, it was informed to the Board of Revenue that the records concerning recovery proceedings under Section 84 are not traceable but some entries in the registers concerning recovery show that such proceedings were in fact taken. The Board of Revenue considered the nature of the above information supplied by the Assistant Registrar and from the circumstances on record of the case, came to the conclusion that no such proceedings under Section 84 for recovery were taken. The Board of Revenue also made adverse remarks against the recovery officer and auction-purchaser. It was observed by the learned Member of the Board of Revenue that the Recovery Officer has not taken proceedings in a bona fide manner and his conduct exposed him to disciplinary action. The Board of Revenue, therefore, held that as no valid proceedings ior recovery under Section 84 were resorted to the proceedings for recovery under Section 85 of the Act were liable to be quashed.

(3.) Shri Ashish Pathak, learned Counsel appearing for the petitioner, contends that auction and sale concluded in favour of the petitioner has been set aside on grounds which were never specifically raised and urged by the borrower before the Joint Registrar and Board of Revenue. The other ground urged is that the borrower did not raise objection to the auction and sale within time and that he did not deposit the requisite money as required by sub-rule (4) of Rule 66 of the Rules framed under the Act. Reliance is also placed on behalf of the petitioner on sub-rule (5) of Rule 66, particularly the proviso, thereunder. A sale can be set aside only on the ground of irregularity or fraud resulting in substantial injury to the person concerned.