KELA GOUDA Vs. KRISHNA PANIGRAHI

JUDGEMENT

(1.) L. RATH, J. :- The petitioner, whose properties have been sold at the instance of the opposite party No. 2, the Land Development Bank, Aska, on account of loans incurred by him, challenges the sale in this petition under Art.226 of the Constitution of India as being void. The petitioner availed two loans mortgaging his land measuring A. 10.50 of land. Since there was default in payment of loans, the opposite party No. 2 put the land to sale under S.91 of the Orissa Co-operative Societies Act, 1962 (for short 'the Act') on 11-6-1975 which was purchased by the opposite party No. 1 for Rs. 9,000/-. Subsequently, the opposite party No. 1 paid Rs. 6,000/- to the Bank towards the second loan of the petitioner and thus made the land free from all encumbrances.

(2.) A petition was filed on 11-7-1975 by the petitioner under para 1(4) of the schedule to the Act to set aside the sale. The application was rejected by the Principal Officer on 8-10-1975 on which date he also confirmed the sale. An appeal carried by the petitioner before the Deputy Registrar having failed, he preferred a revision before the Registrar, Cooperative Societies, Orissa who set aside the sale since the notice under S.91(2) of the Act had not been served before effecting the sale and notice under R.141(3) had also not been served on the petitioner before the sale was conducted. He also found that the provision of R.141(5) had not been observed in conducting the sale and that the application for setting aside the sale had been rejected without notice to the petitioner. On such findings, the sale as also the subsequent confirmation of it were set aside and the case was remanded to the Principal Officer to proceed afresh to conduct the sale. This order was challenged in a further revision before the State Government by the auction purchaser and the revision being allowed setting aside the order of the Registrar, the petitioner has moved this petition for quashing the order of the State Government.

(3.) Admittedly, notice under S.91(2) of the Act and under R.141(3) of the Orissa Cooperative Societies Rules had not been served on the petitioner before conducting the sale as has been found in the order of the State Government. The relief however has been denied to the petitioner since firstly, it was held that the application of the petitioner to set aside the sale under para 1(4) of the schedule was not maintainable and that he could have made the application only under para 1(1) of the Schedule by depositing a sum equal to 5% of the purchase money for payment as compensation to the purchaser and the sum specified in the proclamation for sale for the recovery of which the sale had been ordered together with interest thereon and the expenses of attachment and other costs due; and secondly, the illegality, if any, for non-compliance of S.91 (2) of the Act was not available to be pressed into service since under S.94 of the Act such a grievance is to be remedied only in damages but however title of the purchaser cannot be questioned.