2024 (7) TMI 539 - SC - Indian Laws

Applicability of provisions of Order XXI Rule 90 of the Code of Civil Procedure to the writ proceedings under Article 226 of the Constitution - jurisdiction of Additional Commissioner, Konkan Division, Maharashtra to decide the two appeals filed by the respondent nos. 1 and 6 respectively under Section 247 of the Maharashtra Land Revenue Code, 1966. Applicability of provisions of Order XXI Rule 90 of the Code of Civil Procedure to the writ proceedings under Article 226 of the Constitution - HELD THAT - There is a fine distinction between the auction sale conducted by the executing court under the provisions of the CPC and the auction sale conducted by the State under the provisions of different enactments like Land Revenue Code etc. The whole object behind Order XXI Rule 90 of the CPC appears to be to discourage the judgment debtors from filing frivolous application complaining about the irregularity or fraud in the conduct of the auction sale. A lot of sanctity is attached to the auction sale conducted by the executing court under the provisions of the CPC compared to the auction sale conducted by the State through its authorities - Order XXI CPC deals with the elaborate procedure pertaining to the execution of orders and decrees. Sale is one of the methods employed for execution. Rule 89 of Order XXI of the CPC is the only means by which a judgment-debtor can escape from a sale that has been validly carried out. The object of the rule is to provide a last opportunity to put an end to the dispute at the instance of the judgment- debtor before the sale is confirmed by the court and also to save his property from dispossession. As a court of plenary jurisdiction, the writ court while exercising powers under Article 226 of the Constitution is free to adopt its own procedures and follow them. It cannot be compelled to follow the procedures prescribed in the CPC. This is so for the specific provision made in its Section 141 - The High Court while exercising jurisdiction under Article 226 of the Constitution has jurisdiction to pass appropriate orders. Such power can neither be controlled nor affected by the provisions of Order XXI Rule 90 of the CPC. It would not be correct to say that the terms of Order XXI Rule 90 should be mandatorily complied with while exercising jurisdiction under Article 226 of the Constitution. Proceedings under Article 226 of the Constitution stand on a different footing when compared to the proceedings in suits or appeals arising therefrom. Once it is evident that the mandatory provisions as stipulated under the rules and regulations are not followed or abridged, any action pursuant to the same could be termed as gross illegality. There is a fine distinction between illegality and irregularity. Whereas the former goes to the root of the matter and renders the action null and void, of no effect whatsoever, the latter does not ipso facto invalidate the action, unless prejudice is caused to the person making a complaint, even if, for the purposes of Order XXI Rule 90 of the CPC the lapses we have taken note of could be termed as material irregularities going to the root of the matter. Jurisdiction of Additional Commissioner, Konkan Division, Maharashtra to decide the two appeals filed by the respondent nos. 1 and 6 respectively under Section 247 of the Maharashtra Land Revenue Code, 1966 - HELD THAT - Section 210(1) of the Revenue Code provides that an application can be made where an immovable property has been sold under the Revenue Code by i) owner of the property; and ii) holding interest therein by virtue of a title acquired before such sale. It would be relevant to state that the respondent No. 6 does not fall within the category as provided under Section 210(1) of the Revenue Code nor has the respondent No. 6 claimed to be the owner of the property or has an interest in the property by virtue of the title acquired - It is well settled principle in law that issuance of a writ or quashing/setting aside of an order if revives another pernicious or wrong or illegal order then in that eventuality the writ court should not interfere in the matter and should refuse to exercise its discretionary power conferred upon it under Article 226 of the Constitution of India. The writ court should not quash the order if it revives a wrong or illegal order. Thus, no interference is warranted with the impugned judgment of the High Court. However, the facts and circumstances of this case have left with an uphill task to mould the final order necessary to be passed in order to do substantial justice with the parties to this litigation. While affirming the impugned judgment and order passed by the High Court, the appellant is directed to deposit a sum of Rs. 4,00,00,000/- with the respondent no. 6-ARCIL within a period of six months from today, failing which we shall proceed to pass further orders - appeal allowed in part.

Summary

Issues Involved:
1. Applicability of Order XXI Rule 90 of the Code of Civil Procedure to writ proceedings under Article 226 of the Constitution.
2. Jurisdiction of the Additional Commissioner, Konkan Division, Maharashtra to decide the appeals filed under Section 247 of the Maharashtra Land Revenue Code, 1966.

Issue-wise Detailed Analysis:

1. Applicability of Order XXI Rule 90 of the Code of Civil Procedure to writ proceedings under Article 226 of the Constitution:

The court examined whether the principles enshrined in Order XXI Rule 90 of the Code of Civil Procedure (CPC) should be applied to writ proceedings under Article 226 of the Constitution. The appellant argued that the provisions of Order XXI Rule 90 should apply, meaning that merely establishing a material irregularity or fraud is insufficient to set aside an auction sale unless it results in substantial injury to the aggrieved party.

The court distinguished between auction sales conducted by the executing court under the CPC and those conducted by the State through its revenue authorities. It noted that the CPC's provisions do not apply to writ petitions under Article 226, except for some principles like res judicata and delay and laches. The court emphasized that the writ court exercises its own procedures and is not compelled to follow the CPC.

The court concluded that applying the principles of Order XXI Rule 90 to writ proceedings would be hazardous, especially when the legality, validity, and propriety of the auction sale conducted by the State are questioned on the grounds of mala fides, undue favor, and gross violation of mandatory provisions of law. The court held that the primary consideration for the writ court should be the fairness and transparency of the auction process, not the dual conditions of material irregularity and substantial injury as stipulated in Order XXI Rule 90.

2. Jurisdiction of the Additional Commissioner, Konkan Division, Maharashtra to decide the appeals filed under Section 247 of the Maharashtra Land Revenue Code, 1966:

The appellant contended that the Additional Commissioner had no jurisdiction to adjudicate the appeals filed by the respondent under Section 247 of the Maharashtra Land Revenue Code, 1966, as there was a remedy available under Section 210 of the same code. The court noted that the remedy under Section 210 was rendered illusory because the sale was finalized by the Tahsildar much before the confirmation by the Collector, and the sale certificate was issued, and possession was handed over to the appellant.

The court observed that Section 210(1) provides that an application to set aside the sale can be made by the owner of the property or someone holding an interest therein by virtue of a title acquired before the sale. However, the respondent (ARCIL) did not fall within these categories. The court further noted that once the sale certificate is issued, the remedy falls under Section 247, not Section 210.

The court concluded that even if the Additional Commissioner had no jurisdiction, the common order passed by the Additional Commissioner allowing the appeals and remanding the matter back to the authority concerned should not be disturbed. Quashing the order of the Additional Commissioner would revive the illegal order passed by the Additional Collector confirming the sale, which would be against the principles of justice.

Conclusion:

The court affirmed the impugned judgment and order passed by the High Court, holding that no interference was warranted. However, to do substantial justice, the court directed the appellant to deposit a sum of Rs. 4,00,00,000/- with ARCIL within six months to save its industrial unit set up on the subject land. If the appellant fails to deposit the amount, the competent authorities will take over the possession of the entire unit and land and put it up for fresh auction. The court also clarified that if the appellant deposits the requisite amount, the pending contempt proceedings before the High Court of Bombay will stand terminated.