KARTIKA KISAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) This writ petition has been filed with a prayer for quashing the order of confirmation of sale (Annexure-2), passed by the Principal Officer of the Co-operative Department in the district of Sarmbalpur and ARCS, Sambalpur Circle, under Section 103 (4) Schedule-1 of Orissa Co-operative Societies Act, 1962 (Orissa Act II of 1963)(in short, the 'O.C.S. Act') in E.P. No. 674/1999-2000 and the entire proceedings taken by the opposite parties in connection with the said order.

(2.) The facts and circumstances giving rise to the present writ petition are that opposite party No. 6, Munikisan, had availed a loan of Rs. 50,000/- from the O.P.-Bank to install a Flour Mill. The petitioners stood guarantors by mortgaging their properties described in the R.O.R. under Annexure-1. Opposite Party No. 6 could not repay the said loan as per the terms of the loan agreement. As the opposite party No. 6 defaulted to pay back the loan amount, opposite party No. 3, Asst. Registrar, Co-operative Societies, Sambalpur Circle, sold the property in favour of opposite party No. 5, Marayan Mohapatra, in public auction held on 29.6.2001 against an amount of Rs. 90,500/-. Consequently, the Principal Officer of the Co-operative Department confirmed the said sale on 6th October, 2001 by the impugned order passed under Annexure-2. Being aggrieved, the petitioner-guarantors have filed the present writ petition.

(3.) Miss. Deepali Mohapatra learned Counsel appearing on behalf of the petitioners vehemently argued that actions of the opposite parties, inasmuch as the order of confirmation of sale of immovable properties under Annexure-2 and the proceedings initiated by the opposite parties are illegal, arbitrary and unsustainable in law. She strenuously argued that the properties of the petitioners were sold without complying the provisions of Section 91(2)(a)(ii) of the O.C.S. Act and Rule 141 of Orissa Cooperative Societies Rules (in short 'O.S.C. Rules'), The petitioner are poor Scheduled Tribe and illiterate people and their properties have boon sold without complying with the relevant provisions of the Statue and in violation of the principles of natural justice. The O.P.-Bank assumes no jurisdiction to sell the properties of the petitioners to Opp. Party No. 5 without following due process of law. The petitioners had no knowledge that their properties had been mortgaged by opposite party No. 6 for taking loan from opposite party No. 3. They are all along in possession of the properties in question and possession has not been delivered to opposite party No. 3. Only when opposite party No. 5 tried to take possession of the properties, the petitioners could know about the sale and filed this writ petition on 26.4.2002, i.e., before the sale certificate was issued on 13.05.2002. This Court vide order dated 6.5.2002 granted interim order of status quo. Opposite Party No. 3 has not complied with the provisions of Rule 141 of the Orissa Co-operative Societies Rules, (in short, 'O.C.S. Rules'). One Benga Kisan and one Ura Kisan died during pendency of the proceedings who had share in the joint family property and their properties were sold without following due process of law. Ac.15.00 of land was sold at throw away price ignoring the petitioner's interest.