SITA KANTA SARMA Vs. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES CUM SALE OFFICER, CO-OPERATIVE LAND MORTGAGE BANK LTD. AND ORS.

JUDGEMENT

(1.) THIS application under Article 226 of the Constitution of India is directed against an order of the Assistant Registrar of Co -operative Societies Cum Sale Officer, Co -operative Land Mortgage Bank Ltd., Gauhati, dated 23 -11 -68 by which he held an auction sale of certain immovable property belonging to the Petitioner which was subject to a mortgage to the Co -operative Land Mortgage Bank Ltd.

(2.) IT is stated that the mortgagor failed to pay the dues and the mortgaged property was put to auction sale after giving requisite notice to the mortgagor. Annexure 'B' is a notice under Section 11(2)(b) of the Assam Co -operative Land Mortgage Bank Act, 1960, hereinafter called 'the Act'. This notice shows that the land was sold in public auction under Section 12 of the Act. It is, therefore, difficult to appreciate the submission of Mr. K.P. Sen on behalf of the Bank that the sale did not take place under the provisions of this Act. Mr. Sen on behalf of the Bank has urged that we should not look into the provisions of the Act but should be guide by the provisions of the Assam Co -operative Societies Act, 1949. In view of the very notice (Annexure 13'), this submission is absolutely without any force. The Respondent No. I acted in conformity with the provisions of this Act and, therefore, we will nave to take into consideration only the provisions of this Act and not of the Assam Co -operative Societies Act, as urged by Mr. Sen. Mr. B.M. Goswami, the learned Counsel for the Petitioner, submits that before recourse is taken to Section 11(1) of this Act, there are certain conditions precedent which have to be fulfilled. We will, therefore, read this section:

(3.) TAKING the second submission first, before Section 18 of the Act can be called in aid in an appropriate proceeding, there must be an exercise of the power under Section 11(1) of the Act. Section 11(2) in terms gives a mandate that no such power shall be exercised unless arid until the Board has authorised the exercise of such power under Section 11(1) of the Act. In view of the clear mandate in the section itself, not to exercise the power under Section 11(1) unless there has, been a prior authorisation by the Board, the exercise of power in this case by the Respondent No. 1is no exercise of power in law under the provisions of this Act. Therefore, Section 18 cannot be pleaded as a bar at all. We should, however, observe that although we have dealt with the submission of Mr. Sen under Section 18 of the Act, that section will not be a bar to the exercise of the power under Article 226 of the Constitution in an appropriate case.