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2009 Supreme(UK) 211
2009 (1) U.D., 520
High Court of Uttarakhand
Hon'ble V.K. Gupta, C.J. and Hon'ble V.K.. Bist, J.
V.I.R. Buildcon Pvt. ltd. . ....Petitioner
Vs.
The Commissioner & others.... .Respondents
Writ Petition No. 15 of 2009 (M/B), And Writ Petition No. 05 of 2009 (M/B),
Decided on : 29-04-2009.
In Writ Petition No. 15 of 2009 (Mia) :Sri Alok Singh, Sr. Advocate with Sri Ramji Srivastava, Advocate, for the petitioner. Sri Vinod Nautiyal, Addl. Advocate General, for the respondents. Sri v.K. Kohli, Sr. Advocate with Sri Arvind Vashishth, Advocate for the respondent NO.6. Sri Rakesh Thapliyal, Advocate for the Intervener (CLMA No. 3771 of 2007). Sri Lok Pal Singh, Advocate for the Intervener (CLMA No. 8655 of 2008). Sri Sharad Sharma, Advocate for the Intervener (CLMA No. 8758 of 2008).
In Writ Petition No. 05 of 2009 (Mia) :Sri Arvind Vashishth, Advocate, for the petitioner.
Sri Vinod Nautiyal, Addl. Advocate General, for the respondents Nos. 1 to 5. Sri Alok Singh, Sr. Advocate with Sri Ramji Srivastava, Advocate, for the respondent No.6. Sri Lok Pal Singh, Advocate for the Intervener (CLMA No. 86540f2008).
The rejection of the auction sale by the Commissioner was not in accordance with the statutory provisions, and the court emphasized the mandatory nature of the provisions, ordering the confirmation and execution of the sale deed.
Headnote:
Auction - Property Dispute - U.P. Cooperative Societies Act, 2003, Section 70(1); U.P. Land Revenue Act, 1901, Sections 172, 173, 174 - The court affirmed the auction sale and directed the confirmation and execution of the sale deed in favor of the successful auction purchaser. The court held that the rejection of the auction sale by the Commissioner was not in accordance with the statutory provisions and ordered the confirmation and execution of the sale deed.
Fact of the Case:
The case involved a dispute over the auction sale of a property under the U.P. Cooperative Societies Act, 2003 and the U.P. Land Revenue Act, 1901. The auction sale was challenged by the unsuccessful bidders, leading to a series of legal proceedings and interventions.
Finding of the Court:
The court found that the rejection of the auction sale by the Commissioner was not in accordance with the statutory provisions. It affirmed the auction sale and directed the confirmation and execution of the sale deed in favor of the successful auction purchaser.
Issues: The main issue was whether the rejection of the auction sale by the Commissioner was valid and in accordance with the statutory provisions.
Ratio Decidendi: The court held that the rejection of the auction sale by the Commissioner was not in accordance with the statutory provisions, particularly Sections 172, 173, and 174 of the U.P. Land Revenue Act, 1901. It emphasized the mandatory nature of the provisions and ordered the confirmation and execution of the sale deed.
Final Decision: Writ Petition No. 15 of 2009 (M/B) was allowed, quashing the impugned orders and Auction Notice, and directing the confirmation and execution of the sale deed. Writ Petition No.5 of 2009 (M/B) was dismissed, affirming the rejection of the auction sale by the Commissioner.
V.K. Gupta, C.J.
By this common judgment, both the Writ Petitions are being disposed of together.
2. In Writ Petition No. 15 of 2009 (M/B), filed by V.I.R. Buildcon Pvt. Ltd. which is a Company incorporated under the Companies Act, 1956, the following reliefs have been claimed by the petitioner:
"i. issue a writ, order or direction in the nature of Certiorari, calling for the records and setting aside the orders dt. 10-7-2007 and 12-7-2007 (Annexure Nos. 18 and 19 to this writ petition), passed by Commissioner, Garhwal Division, Pauri Garhwal, Camp at Dehradunrespondent no. 1 and Additional Tehsildar, Sadar, Dehradun-respondent no. 4, in the office of Tehsildar (Sadar), Dehradun, respectively.
ii. issue a writ, order or direction in the nature of Certiorari, calling for the records and quashing the auction notice dt. 20-7-2007 (Annexure No. 20 to this writ petition), issued by Additional Tehsildar, Sadar, Dehradun-respondent no. 4.
iii. issue a writ, order or direction in the nature of Mandamus, commanding the respondent authorities to confirm the auction bid of petitioner, made on 7-3-2007.
iv. issue a writ, order or direction in the nature of Mandamus, commanding the respondent authorities to execute the sale deed of property in question in favour of petitioner and also hand over the vacant possession of property in question to the petitioner.
v. pass any other and further orders which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
vi. Award the cost of writ petition to the petitioner."
3. In Amended Writ Petition No.5 of 2009 (M/B), filed by Nakul Singh, the sole petitioner, the following reliefs have been claimed by him:
"i. A writ, order or direction in the nature of mandamus commanding the respondents to sale the property in favour of the petitioner's nominee as they are ready and willing to pay Rs. 2.27 crore with above 5% and as the application to this effect already moved before District Magistrate.
i-a. a writ, order or direction in the nature of certiorari quashing the order dated 22-5-2007 passed by Commissioner Garhwal Mandai, Camp at Dehradun (Annexure no. 9 to the writ petition).
ii. A further writ, order or direction in the nature of mandamus commanding the respondents not to take steps for further auction of the property in question.
iii. Any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
iv. Award the cost of petition to the petitioner."
4. Mayur Chalchitra Utpadan Pradarshan Evam Vitran Sahkari Samiti Ltd., 19-B, Ugrasen Road, Dehradun, obtained loan from District Cooperative Bank Ltd., Dehradun. Nakul Singh, writ petitioner in Writ Petition NO.5 of 2009 (M/B), stood as a Guarantor to the repayment of this loan. Nakul Singh, at the relevant time, was the proprietor of M/s Sanyog Enterprises, Dehradun. By way of offering his guarantee to the repayment of the said loan, Nakul Singh mortgaged part of Property No. 19 measuring about 2 Bighas & 11 Biswas situated at New Survey Road (Rai Bahadur Ugrasen Road) Dehradun, as well as the complete portion of the constructed building upon the said piece of land, which is popularly known in Dehradun as 'Kanak Cinema'. Because the Loanee could not repay the debt or the interest thereupon or any part thereof, an Application under Section 70(1) of UP. Cooperative Societies Act was filed against the Loanee as well as the Guarantor for adjudication of the disputes, through Arbitration.
In the said Application filed under the said Section 70( 1) of the aforesaid Act, the District Cooperative Bank Ltd., Dehradun had claimed an award of money on account of its entitlement arising from the aforesaid loan and the guarantee agreements between the Loanee and the aforesaid Guarantor namlJly Nakul Singh. On 3m June, 2000, in terms of the aforesaid U.P. Cooperative Societies Act, the Arbitrator passed an Award for a sum of Rs. 59,95,210.42/-, which included Rs. 19,72,373.90/- a
