TaxTMI 
TaxTMI 
TaxTMI 
2015 (10) TMI 2532
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....s of Section 108 of the Karnataka Cooperative Societies Act, 1959 (hereinafter "KCS Act"). 3. Though the case has a chequered history, we refer to the facts in brief hereunder, which are required to appreciate the rival legal contentions urged on behalf of the parties:- The appellants are small farmers who had availed a loan of Rs. 16,000/- from the Kadur Taluk Primary Co-Operative Land Development Bank Ltd. (hereinafter the "Bank") by mortgaging their entire immoveable agricultural property as security for the same. These lands were situated at Sakkarepatna village of Kadur Taluk, Chikmagalur, descriptions of which are stated hereunder in survey numbers and their measurements: 552 1 Acre 07 Guntas 555 0 Acre 38 Guntas 556 0 Acre 14 Guntas 557 1 Acre 28 Guntas 4. Admittedly, the appellants initially were able to pay only one instalment of the loan, and were not able to pay the subsequent instalments. The respondent Bank filed a petition before the Arbitrator of Co-Operative Societies, Chikmagalur District, which was registered as a case in Dispute D.T.C 75/1974-1975. The learned Arbitrator, passed an ex parte award in favour of the Bank by his order dated 31.05.1....
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....ribunal being barred by limitation as under: "While respondent-4 had filed his appealappeal No. 431 of 1981- after six years. Every one of the reasons on which those respondents sought of condonation of delay in filing their reading of the applications should have rejected that respondents 5 and 6 had not been served, had condoned the delay in filing the appeal. Assuming that reason opinion, particularly having regard to the fact that they were not other than the sons of respondent-4, who had appeared before the Arbitrator and had consented for a decree sought by the society. I am somewhat distressed at the way the Tribunal has dealt with the appeals and has condoned the inordinate and inexplicable delay in filing the appeals. On the principles of regulating the condonation of delay, the Tribunal should have rejected their appeals also in limine. From this it follows that the order of the Tribunal, which suffers from manifest illegalities in exercise of its jurisdiction is liable to be quashed." On the issue of the order of the Arbitrator being passed ex parte against the respondents therein, the High Court held as under: "An award/ decree made against a person, though he was no....
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....ijaydev (respondent no.6 herein), thereby confirming the sale of the lands of the appellants herein. Aggrieved of the same, the appellants preferred an appeal under Section 106 of the KCS Act before the Deputy Registrar of the Cooperative Societies, Chikmagalur District. The appeal was dismissed by the Deputy Registrar vide order dated 09.05.1986. While dismissing the appeal, the learned Deputy Registrar held as under: "The appellants have contended that the action of the Assistant Registrar of Cooperative Societies, is contrary to law, but they have not specifically mentioned or proved as to how the confirmation of sale is in violation of the K.C.S Act or contrary to Rule 38 of the K.C.S Act and the Rules. Therefore the order of confirmation of sale passed by the Assistant Registrar of Cooperative Societies is upheld and the appeal is dismissed." 8. The appellants then filed a Review Petition under Rule 38(5)(a) of the KCS Rules, challenging the order of confirmation of sale of the immoveable property passed by the Assistant Registrar of Co-Operative Societies dated 10.12.1985, which petition was dismissed as not maintainable vide order dated 17.08.1996, on the ground that an ap....
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....as been rather narrow and such long drawn litigation could have been avoided, had the authorities thought in a more rational manner instead of going into avoidable technicalities. I am of the opinion that the DRCS should have examined the facts and circumstances of the auction sale in the appeals before him and decide the matter. Available facts indicate that such an effort was not made and the matter went into litigation for years. While I am aware the auction sale was held in 1981, it is unfortunate that not enough efforts have been made by the authorities to see the case at hand in an objective manner and the facts have not been analysed with respect to the benefit of interest waiver ordered by the State Government that was intended to reach the needy farmer. In my opinion, the conditions of loan default that prevailed then, with these petitioners were surely coming within the ambit of the conditions stipulated in the circular dated 02.03.1984 which is based on a government order it would be appropriate to make all efforts to see that such a benefit reached the persons to whom it was intended to reach in the first place......" (emphasis laid by this Court) 9. The auction purcha....
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....sent appeals. 10. We have heard the learned counsel for both the parties. On the basis of the factual evidence on record produced before us, the circumstances of the case and also in the light of the rival legal contentions urged by the learned counsel for both the parties, we have broadly framed the following points which require our attention and consideration:- 1.Whether the Revision Petition filed before the Minister for Co-Operation is barred by time in light of the provisions of Section 108 of the Karnataka Cooperative Societies Act, 1959? 2.Whether the interest of the auction purchaser is protected on grounds that he is a bona fide third party? 3.What order? Answer to Point No. 1 11. The litigation in this case has been quite lengthy, which has seen multiple hearings before multiple forums. The controversy arose in the case when the learned Arbitrator passed the ex-parte order dated 31.5.1975 against the appellants. The Karnataka Appellate Tribunal set aside the same vide order dated 27.12.1983. The Karnataka High Court in Writ Petition No. 6642 of 1984 set aside the order of the Karnataka Appellate Tribunal by its judgment and order dated 29.11.1985. On the basis of t....
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....: "105. Appeals to the Tribunal.- Any person aggrieved by,- ......... (c) any award of an Arbitrator under clause (c) of sub-section (1) of section 71; ......... may, within sixty days from the date of the decision, award or order, as the case may be, appeal to the Tribunal." Section 108 of the KCS Act confers powers of revision on the State Government as under: "108. Powers of revision of State Government.- [Subject to the provisions of section 108A, the State Government] suo mot u at any time, and, on application of any person aggrieved, within a period of six months from the date of any order, may call for and examine the record of any case or proceedings of any officer subordinate to it except those subject to appeal or revision by the Tribunal or those in respect of which an appeal has been made to the State Government under section 106, and the State Government after such enquiry as it deems fit is satisfied that the order of the officer is contrary to law and has resulted in a miscarriage of justice, pass such orders thereon as the State Government deems just: Provided that no order shall be made to the prejudice of any person under this section unless he has been given ....
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....contends that the High Court erred in setting aside the order of the Minister of Co-operation, Government of Karnataka in the Revision Petition on the ground that it was barred by limitation. The learned counsel places reliance upon the case of Collector, Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors. (1987)2 SCC 107, wherein this Court has laid down the following principles to be applied while condoning delay : "1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have ve....
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....hout considering the relevant fact of repayment of principal amount due to the Bank within the time stipulated in the notification issued by the Bank referred to supra. The appellants had informed the Bank regarding the repayment of loan on 29.06.1983. The appellate authority has not considered the claim of the appellants on merit. The High Court of Karnataka in Writ Petition No. 6642 of 1984 set aside the order of the Karnataka Appellate Tribunal dated 27.12.1983 on the ground that the appeal before the Tribunal was barred by limitation. The Writ Appeals filed by the appellants were also dismissed. The confirmation of sale of the property in question was done on the basis of the order in the above mentioned Writ Petition. The same was challenged by the appellants before the Deputy Registrar of Co-operative Societies, who dismissed it on the ground that the appellants have not proved how the confirmation of sale is contrary to the provisions of the KCS Act, despite the fact of the repayment of the loan amount to the Bank being brought to his notice. The order of the Minister of Co-operation, Government of Karnataka in the Revision Petition setting aside the confirmation of sale was....
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....apse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is plain that exercise of such power within reasonable time is inherent therein." (emphasis laid by this Court) If a statute does not prescribe the time limit for exercise of revisional power, it must be exercised within a reasonable time frame. In the instant case, it is evident that constant litigation has been carried on by the appellants, and therefore they cannot be accused of suddenly waking up after 13 years to claim their land. Further, in the context of limitation, it has been held by this Court in a catena of cases that when what is at stake is justice, then a technical or pedantic approach should not be adopted by the Courts to do justice when there is miscarriage of justice caused to a public litigant. A three judge bench of this Court in the case of State of Haryana v. Chandra Mani & Ors. (1996)3 SCC 132 has held as under : "The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of ....
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....an integral part of right to life, most notably in the landmark judgment of this Court rendered in the case of Olga Tellis v. Bombay Muncipal Corporation (1985) 3 SCC 545 , wherein it has been held as under: "32. ............An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration o....
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....ka must be taken as a suo moto exercise of power by him. Answer to Point No. 2 21. It was next contended by Mr. S.N. Bhat, the learned counsel appearing on behalf of respondent No.6 (the auction purchaser) that the interest of the auction purchaser should be protected, as he is a bona fide third party, who purchased the land at the auction. The learned counsel places reliance on the decision of this Court in the case of Janatha Textiles & Ors. v. Tax Recovery Officer & Anr (2008) 12 SCC 582 , wherein this Court has held that the rights of a bona fide auction purchaser must be protected and that his title is saved even if the decree is set aside. 22. We are unable to agree with the above contention of the learned counsel on behalf of the auction purchaser. The auction purchaser, in our opinion, is not a bona fide purchaser. Section 89 of the KCS Act sets down the procedure of sale, which provides as under: "89. Power of sale when to be exercised.- (1) Notwithstanding anything contained in the Transfer of Property Act, 1882 (Central Act IV of 1882), where a power of sale without the intervention of the court is expressly conferred on the [Agriculture and Rural Development Bank] b....
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....er the attachment has been effected. Notice shall also be given to the applicant and defaulter. The proclamation shall state the time and place of sale and specify as fairly and accurately as possible :-- (i) the property to be sold, (ii) any encumbrance to which the property is liable; (iii) the amount for the recovery of which sale is ordered and (iv) every other matter which the Sale Officer considers material for a purchaser to know in order to judge the nature and value of the property." Further, the fact that the actual auction sale had been conducted on 25.05.1981 will also not come to the rescue of the auction purchaser, as it has been held in the case of Velji Khimji and Co. v. Official Liquidator of Hindustan Nitro Product (Gujarat) Limited and Ors. (2008) 9 SCC 299 as under:- "In the first case mentioned above i.e. where the auction is not subject to confirmation by any authority, the auction is complete on the fall of the hammer, and certain rights accrue in favour of the auction-purchaser. However, where the auction is subject to subsequent confirmation by some authority (under a statute or terms of the auction) the auction is not complete and no rights acc....