GOURISHANKAR KANUNGO Vs. KHETRAMOHAN RAY

JUDGEMENT

(1.) This application filed under Arts. 226 and 227 of the Constitution of India calls in question the order passed by the Revenue Divisional Commissioner, Central Division, Cuttack in Certificate Revision Case No. 35 of 1983 (Annexure 3) rejecting the application of the petitioners to set aside the sale of the mortgaged property on reversing the orders passed by the Certificate Officer as well as by the appellate authority. The disputed property is A.1.56 decimals of land in village Odangi. Petitioners 1 to 9 are interested in A.O.03 decimals of land out of the disputed property. Petitioners 10 to 12 are concerned with the rest of the disputed property.

(2.) The relevant facts necessary for disposal of the present proceeding may be stated thus One Madan Mohan Mohapatra had four sons, namely, Umakanta, Antaryami, Murali and Ramakanta. Antaryami and Murali died issueless. Umakanta has four sons, namely Dwarikanath, Sitakanta, Rabinarayan and Laxmidhar (petitioner No. 12) and a daughter Punti. Ramakanta has a son Gangadhar. Mina (petitioner No. 10) and Kalpana (petitioner No. 11) are the daughters of Rabinarayan. Khetramohan (opp. party No. 1) is the husband of Punti. A certificate proceeding under the Bihar and Orissa Public Demands Recovery Act, 1914 (hereinafter referred to as the 'Act') was initiated against Dwarikanath, Sitanath, Rabinarayan and Laxmidhar for realisation of the Govt. dues amounting to Rs. 119/-. In course of execution of the certificate, a sum of Rs. 50/- was paid by the certificate debtors on 13-4-59. Since the balance amount had not been paid, a proclamation of sale under R. 25 of the Rules framed under the Act was published. The attached property was sold on 25-9-63 and the sale was confirmed on 27-11-63. The certificate of sale was issued on 28-464 and delivery of possession is alleged to have been given to the auction purchaser, opp. party No. 1, on 31-1-65. The property, on area of A.1.56 decimals, was sold for a sum of Rs. 200/-. Thereafter the father of petitioners 7 to 9, late Kanurigo Narendranath Das Mohapatra and petitioners 10 to 12 filed an application under S.29(2) of the Act on 12-6-70, before the Certificate Officer, Balasore for setting aside the sale. The application was registered as Misc. Case No. 2 of 1970. The application was contested by opp. party No. 1, the auction-purchaser. The Certificate Officer by his order dated 17-7-72 rejected the application to set aside the sale. On appeal by the petitioners, the Addl. Dist. Magistrate by his order dated 13-9-78 in Certificate Appeal No. 7 of 1972 allowed the appeal observing that after analysing the facts, he found that the Certificate Officer had not properly enquired into the various points raised in the objection petition dated 12-6-70 and therefore his findings were vitiated. The case was remanded to the Certificate Officer for further enquiry in the light of the observations made by the appellate authority.

(3.) The Certificate Officer on appraisal of the materials on record afresh held, inter alia, that (1) the service of notice under S.7 of the Act on the certificate debtors was not adequate inasmuch as there were four certificate debtors to whom notices were addressed, but four copies of the notice alleged to have been served by affixture were not available in the case record; (2) that the heirs of Rabinarayan who died during pendency of the proceeding before the Certificate Officer were not substituted before the sale of the property; (3) that the sale proclamation had not been signed by the Certificate Officer and a fascimile signature had been put thereon; (4) that service of the sale proclamation on the Certificate debtors by sending a copy of the same by registered post and by personal service had not been done as required under R. 2(ii) of Sch. 11 of the Act; (5) that the bidders taking part in the bid were interested persons, two were the sisters' husbands of the auction purchaser, the third was his wife's brother and the fourth was his `Halia'; (6) that the petitioners before the Certificate Officer had sustained substantial injury as a portion of the land sold by Ramakanta Mohapatra, father of Gangadhar, to Kanungo Narendaranath Das in 1938 by registered sale deed had been mortgaged by the certificate debtors who are sons of Umakanta in loan bond and again this land was sold to the auction purchaser; (7) that the land was sold at a very low price compared to the value of the land sold in the vicinity. Though the land was being sold at the rate of Rs. 2,200/- per acre in the vicinity, in the auction sale A.1.56 decimals of land was sold for a paltry sum of Rs. 200/- and (8) that the evidence on record showed that Gangadhar continued to possess his eight annas share in the, property despite the sate by auction. The heirs of late Kahungo Narendranath Das continued in possession of A.O.03 decimals of land purchased by Narendranath Das in 1938. Thus actual possession of the entire land sold had not been delivered to the auction-purchaser." On the aforesaid findings, 'the Certificate Officer, being satisfied that substantial injury was sustained by the petitioners before him in the proceeding under S.29 of the Act due to material irregularities in conducting the sale, passed the order on 30-12-80 directing issue of notice to the certificate debtors to deposit the dues plus interest at the rate of 6.1/4% and cost etc., before 5-1-81 (order in Annexure- 1). The certificate debtors in compliance with the aforesaid direction deposited the amount and notice was issued to the opp. party No. 1 to receive the auction money from the Court of the Certificate Officer on 29-1-81 (Annexure-1/a).