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2005 Supreme(AP) 101
Andhra Pradesh High Court
Judges : L.NARSIMHA REDDY
M.Krishna - Appellant
Versus
A.P.Co-operative Tribunal, Hyderabad - Respondent
Decided On : 02-07-05
Headnote:AP Cooperative Societies Rules, 1964 - Rule 52 - AP Cooperative Societies Act, 1964 - Section 76 - Appeal or Revision - providing for a remedy of appeal or revision through delegated legislation, not prohibited in law, except where the parent Act clearly bars such remedy
Held : Rule 52 of the rules is broadly comparable to Order 21 c P C It runs into 14 printed pages and contains 25 sub-rules Some of the sub-rules contain numerous clauses A sale brought about under the rule becomes final, on issuance of a sale certificate Rule 52 (14) (6) provides that the order of confirmation of sale shall be final, subject to an appeal under Section 76 of the Act The fourth respondent availed the remedy, under that provision Though the petitioners took an objection as to the maintainability of the appeal, filed a writ petition on earlier occasion and canvassed the same ground in this writ petition also, this Court is not impressed upon, to take the view that such a provision is ultra vires the Act It is arguable that an appeal is the creation of a statute and unless specifically provided for under the Act, its scope cannot be widened through a delegated legislation But it should not be forgotten that when the delegated legislation itself is so elaborate as to supplement several details, provision of appeals or other remedies become necessary, to ensure fairness and legality to such proceedings
( 1 ) PETITIONERS challenge the order, dated 22. 11. 2004, passed by the A. P. Co-operative Tribunal (for short the tribunal ), the first respondent, in C. T. A. No. 61 of 2003. As an alternative prayer, they seek a declaration that Rule 52 of the a. P. Co-operative Societies Rules, 1964 (for short the Rules ) is ultra vires the provisions of the A. P. Co-operative Societies Act, 1964 (for short the Act ).
( 2 ) THE facts that gave rise to the filing of this writ petition, in brief, are as under:
( 3 ) THE fourth respondent borrowed a sum of Rs. 25,00,000/- from Co-operative urban Bank Limited, Hyderabad (for short the Bank ), the fifth respondent, in the year 1998. There was default in repayment of the same. Therefore, the Bank initiated proceedings for recovery of the amount. An Award dated 6. 5. 2000 in a. R. C. No. 81 of 2000 was passed by the deputy Registrar of Co-operative Societies, the second respondent, holding that the fourth respondent is liable to pay a sum of rs. 27,24,810/- with interest, that accrued thereon. The fourth respondent filed C. T. A. (SR) No. 6370 of 2001 against the Award. The Tribunal granted an order of conditional stay. However, the condition was not complied with and the order of stay became inoperative.
( 4 ) THE Bank initiated execution proceedings in E. P. No. 21 of 2001 against the fourth respondent. The mortgaged property was proposed for sale. Initially, a sale notice was issued on 23. 1. 2002. In view of the stay granted by the Tribunal, the sale was not proceeded with. On the failure of the fourth respondent to comply with the condition, and the cessation of stay, a second sale notice was published on 11. 4. 2002 fixing the date of auction as 24. 04. 2002. The auction was not held on that day. Thereafter, another sale notice was published on 1. 8. 2002 fixing the date of auction as 24. 8. 2002. The petitioners participated in the auction jointly and they emerged as the successful bidders for a sum of Rs. 31,00,000/ -.
( 5 ) THE fourth respondent filed W. P. No. 15814 of 2002 in this Court challenging the auction notice dated 1. 8. 2002 issued in e. P. No. 21 of 2001. The writ petition was disposed of on 06. 09. 2002 at the admission stage. The fourth respondent undertook to pay the outstanding amount by 7. 1. 2003 and the Bank undertook not to proceed with the same till that time. The undertakings were recorded. A default clause was added to the effect that if the petitioner fails to make the payment, as agreed, the bank shall be at liberty to proceed with the sale. The fourth respondent filed W. P. M. P. No. 2747 of 2003 in that writ petition seeking extension of time. Through order, dated 10. 2. 2003, the time was extended up to 25. 2. 2003. He did not deposit the amount within the extended time also.
( 6 ) THE sale in favour of the petitioners was confirmed and a sale certificate was issued on 10. 2. 2003. Questioning the same, the fourth respondent filed C. T. A. No. 61 of 2003. Through its order, dated 22. 11. 2004, the Tribunal had set aside the sale certificate. The Sale Officer was directed to conduct the sale by issuing a fresh proclamation, duly following the procedure.
( 7 ) SRI Vedula Venkataramana, learned Counsel for the petitioners, submits that the fourth respondent committed default in payment of the amount and did not comply with the conditions imposed by this Court in W. P. No. 15814 of 2002, filed by him. He also contends that the fourth respondent has raised several contentions in that writ petition, while challenging the sale notice dated 1. 8. 2002, and it was not open to him, to raise the same or other potential grounds, in the appeal before the Tribunal. The learned Counsel submits that the tribunal has drawn several inferences and recorded findings to the effect that fraud was played in the process of sale, without there being any material. Placing reliance upon the judgments of this Court and the Supreme Court, he contends that the ex
