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TMI Blog2024 (7) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts 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. - J. B. PARDIWALA And MANOJ MISRA , JJ. For the Appellant : Mr. P.S. Patwalia, Sr. Adv. Mr. Abhay Kumar, AOR Mr. Janak R. Shah, Adv. Mr. Shagun Ruhil, Adv. Mr. Saurabh Mishra, Adv. Ms. Neetu Jain Gautam, Adv. Mr. Tirupati Gaurav Shahi, Adv For the Respondent : Mr. Sachin Patil, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Bharat Bagla, Adv. Mr. Sourav Singh, Adv. Mr. Aditya Krishna, Adv. Ms. Preet S. Phanse, Adv. Mr. Adarsh Dubey, Adv. Mr. Geo Joseph, Adv. Mr. Risvi Muhammed, Adv. Mr. Durgesh Gupta, Adv. Mr. Mukesh Kumar Maroria, AOR Mr. Amar Dave, Adv. Mr. Amar Dave, Sr. Adv. Ms. Amrita Narayan, Adv. Mr. Mohit D. Ram, AOR Mr. Rajul Shrivastav, Adv. Ms. Monisha Handa, Adv. Mr. Ashw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent no. 1 herein was put to auction under the provisions of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as the Revenue Code ). In the said auction proceedings, the appellant herein was declared as the successful bidder and ultimately, sale certificate was issued by the Additional Collector, Thane in favour of the appellant. A. FACTUAL MATRIX 6. This litigation has a chequered history and therefore, it is necessary for this Court to look into the events that occurred over a period of time giving rise to the present two appeals before us: a. The respondent no. 1, M/s Prestige H.M. Polycontainers, executed necessary loan and security documents in favour of the State Bank of India thereby mortgaging its property situated at Village Vadavali, Taluka Talsari, District Thane (Now District Palaghar), Maharashtra (hereinafter referred to as the property ) bearing Survey No. 87/11, admeasuring 13,978 sq. mts. Subsequently, the State Bank of India by an assignment agreement assigned the debts due and payable to it in favour of the respondent no. 6, Asset Reconstruction Company (India) Ltd. (hereinafter referred to as ARCIL ) under the provisions of The Securitisation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No. 4 that the Director of Respondent No. 1, viz. Mr. P.K. Gupta had issued a No-Objection Certificate dated 20.10.2008 for conducting the auction sale of the property, yet the said fact was outrightly denied by Mr. P.K. Gupta in proceedings before the Additional Commissioner and the High Court. i. On 20.10.2008, respondent no. 4 issued a letter to the Sub-Divisional Officer, Dahanu division, informing him of the valuation of the property at Rs. 51,75,000/- and requesting him to fix the upset price. j. On 07.11.2008, the respondent no. 4 issued a letter to the Sub Divisional Officer, Dahanu Division stating that No-Objection Certificate had been received from the Director Mr. P.K. Gupta of the respondent no. 1 for the auction of the Property. k. On 17.11.2008, the Sub-Divisional Officer, Dahanu Division approved the price of the land at Rs. 54,33,750 being a total of Rs. 51,75,000 (which had been fixed by M/s Trimurti Industries Eng. Services, Mumbai) + 2,58,750 (+5%) under Rule 13 of the Rules. l. Notice dated 18.11.2008 came to be published by the respondent no. 4 in the newspaper viz. Dahanu Times for public auction furnishing details of the suit property with the upse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter dated 19.12.2008. x. The respondent No. 1 issued a letter dated 16.12.2008 to the Assistant Director, FEMA stating that they had not received the Enforcement Order dated 12.08.2003. y. On 18.12.2008, respondent no. 4 in its letter recorded that full sale consideration of the property was deposited by the appellant on 04.12.2008. z. On 19.12.2008, respondent no. 4 issued a response to the letter dated 10.12.2008 of the IFCI. aa. On 26.12.2008, the WP (C) No. 2998 of 2008 (renumbered as WP 207 of 2009) was preferred by the respondent no. 1 against the auction and sale dated 03.12.2008 before the Bombay High Court. Vide the said writ petition the respondent no. 1 sought a direction to quash and set aside the enforcement order dated 12.08.2003 and all the consequential acts of recovery of penalty by auction of the properties. bb. The Bombay High Court by its order dated 31.12.2008 passed in WP (C) NO. 2998 of 2008 (renumbered as WP 207 of 2009) directed Union of India, the respondent therein, to provide photocopies of the relevant documents and to allow inspection. cc. The Additional Collector, Head Office, Jawar issued a letter dated 07.10.2009 to respondent no. 4, directing him t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue Code against the sale of the property. Both the appeals came to be allowed by respondent no. 8 by a common order wherein it was held that the order of sale dated 03.12.2008 and the process followed by respondent no. 4 and affirmed by the Additional Collector, Thane H.Q. Jawar dated 15.01.2009 was illegal and accordingly remanded the entire proceedings to the Additional Collector, Thane for appropriate fresh adjudication. mm. Against the aforesaid order dated 18.06.2010, the appellant filed WP No. L-1564 of 2010/W.P. No. 415 of 2011 and WP No. 418 of 2011 before the High Court of Judicature at Bombay. nn. The High Court in WP No. 1564 of 2010 vide its order dated 07.09.2010 stayed the operation of the order dated 18.06.2010 and directed the parties to maintain the status quo. 7. Both the writ petitions filed by the appellant herein, i.e., Writ Petition (C) No. 415 of 2011 with Writ Petition No. 418 of 2011 ultimately came to be adjudicated by the High Court and vide its impugned judgment order dated 9.12.2014 were rejected. The relevant observations made by the High Court while rejecting both the writ petitions are as under: 33. Heard the learned counsel for the parties a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... auction and handed over possession to the Petitioner, which was contrary to law. 38. It is interesting to note that after handing over possession to the Petitioner, the Collector, by order dated 16/01/2009 confirmed the sale of the suit property in favour of the Petitioner. That means, before confirmation of the auction sale in favour of the Petitioner, the Tahasildar on his own, without any authority, handed over possession to the Petitioner. This court, in the matter of Shravan Vithoba Dekate (supra) in paragraph 12 specifically held that the provisions of the Code in respect of the auction sale to be strictly followed. The Apex Court, in the matter of Mathew (supra) categorically held that if the Rules framed for public auction under the SARFAESI Act are not followed strictly, the auction sale is required to be set aside. These facts are considered by the Additional Commissioner at the time of passing the impugned order. The Additional Commissioner categorically held that the orders passed by the Tahasildar as well as the Additional Collector were contrary to the provisions of the Code. Hence, the Additional Commissioner Konkan Division set aside both the orders and the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016. 10. We were informed that the said contempt petition is pending as on date before the High Court. This Court vide its order dated 3.11.2019 directed the Debt Recovery Tribunal (I) (hereinafter, DRT ) at Mumbai to proceed to decide the original application filed by the respondent no. 6. These proceedings before the DRT were relating to the Mortgage which came to be created by the appellant herein. The DRT declared the mortgage over the suit property to be illegal and allowed the O.A. No. 168 of 2002 against all the defendants with costs for an amount of Rs. 24,15,20,115.76/- with interest @ 12 per cent per annum from the date of filing of O.A. till such realisation. 11. In such circumstances referred to above, the appellant is here before this Court with the present appeals. B. SUBMISSIONS ON BEHALF OF THE APPELLANT 12. Mr. P.S. Patwalia, the learned Senior Counsel appearing for the appellant, vehemently submitted that the High Court committed an egregious error in holding that the auction proceeding conducted by the Tahsildar was a sham and much contrary to the statutory provisions of the Revenue Code more particularly Sections 193 and 194 respectively of the Revenue Code. 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not maintainable under Section 247 of the Revenue Code. 19. It was submitted that the suit property was purchased by the appellant in the year 2008 by depositing the amount of Rs. 55 lakhs in accordance with the valuation report prepared by two government approved valuers. It was pointed out that thereafter, the appellant put up a huge industrial unit for the purpose of manufacturing oxygen cylinders. Various permissions and licences from the Central Government were obtained for the purpose of setting up the oxygen cylinder plant. It was also pointed out that as on date more than two hundred workers are employed in the appellant company. 20. In such circumstances referred to above, Mr. Patwalia, the learned Senior Counsel submitted that if the appellant is asked to hand over the possession of the entire suit property at this point of time, he would incur irreparable injury, which cannot be compensated in terms of money. 21. It was submitted that ordinarily the court should not disturb the sale by auction unless it is an evident case of mala fide or a result of fraud. According to Mr. Patwalia, sometime back his client had also offered to pay to the lenders the market value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed on 03.12.2008 even without ensuring whether the complete payments in respect of the sale proceed had been fully realised or not. More surprisingly, the perusal of the affidavit filed by the Tahsildar in the High court (in the first round of litigation filed by Prestige) clearly indicates that the attempt was to suppress the fact to the extent that one of the cheques had been realised after the sale confirmation 03.12.2008. The cheque was actually realised on 04.12.2008. No public authority can confirm a sale without even realizing the entire consideration and any such attempt is clearly indicative of the fraudulent and collusive nature of the proceedings in question. e. That the so-called reliance on the letter of No Objection being the entire basis of the starting of the final auction proceeding is clearly indicative of the fraud perpetuated more particularly when the respondent No. 1 company, i.e., Prestige H.M. Polycontainers Ltd. clearly declared that no such No Objection letter was ever signed by it. Even otherwise the sequence of events including the newspaper advertisements clearly indicate that such a plea of taking no objection from the owner and then subsequentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant was put in possession on 04.12.2008 and the sale of property was confirmed on 15.01.2009 by the Additional Collector, which is per se illegal in nature. The haste with which the proceedings were undertaken speaks for itself. k. Indisputably, objection was raised by the IFCI on 10.12.2008, which has been recorded by the Tahsildar in its letter dated 19.12.2008. l. On 07.01.2009, the Additional Collector, Head Office Jawar directed respondent no. 4 to submit a detailed report on whether it had fulfilled all the conditions as stipulated under Section 208 of the Revenue Code. However, vide its letter dated 12.01.2009 addressed to the Additional Collector, Head Office Jawar, respondent no. 4 informed that except for the WP in the High Court of Bombay, no other objection was received and thereby all requirements under Section 208 of the Revenue Code had been fulfilled, despite IFCI having raised its objections vide a letter dated 10.12.2008. 24. As regards the offer put forward by the appellant to deposit the requisite amount as per the market value of the property, Mr. Dave fairly submitted that sometime back, the appellant had offered to pay to the lenders but as the lenders fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an arrear of revenue, and direct by what officer such notices shall be issued. S. 179. Occupancy or alienated holding for which arrear is due may be forfeited. The Collector may declare the occupancy or alienated holding in respect of which an arrear of land revenue is due, to be forfeited to the State Government, and subject to rules made in this behalf, sell or otherwise dispose of the same under the provisions of section 72 or 73 and credit the proceeds, if any, to the defaulter s accounts : Provided that, the Collector shall not declare any such occupancy or alienated holding to be forfeited (a) unless previously thereto he shall have issued a proclamation and written notices of the intended declaration in the manner provided by sections 192 and 193 for sales of immovable property, and (b) until after the expiration of at least fifteen days from the latest date on which any of the said notices shall have been affixed as required by section 193. xxx xxx xxx S. 192. Procedure in effecting sales. (1) When any sale of either movable or immovable property is ordered under the provisions of this Chapter, the Collector shall issue a proclamation in the prescribed form with its trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that, when the sale is postponed for a period longer than thirty days a fresh proclamation and notice shall be issued unless the defaulter consents to waive it. S. 196. Sale of perishable articles. Nothing in sections 192, 193, 194 and 195 applies to the sale of perishable articles. Such articles shall be sold by auction with the least possible delay, in accordance with such orders as may from time to time be made by the Collector either generally or especially in that behalf. S. 197. When sale may be stayed. If the defaulter or any person on his behalf, pays the arrear in respect of which the property is to be sold and all other charges legally due by him at any time before the property is knocked down, to the person prescribed under section 170 to receive payment of the land revenue due, or to the officer appointed to conduct the sale or if furnishes security under section 191, the sale shall be stayed. xxx xxx xxx S. 200. Mode of payment when sale is subject to confirmation. (1) When sale is subject to confirmation, the party who is declared to be the purchaser shall be required to deposit immediately twenty-five per centum of the amount of his bid, and in default of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of sale, apply to the Collector to set aside the sale on the ground that the defaulter had no saleable interest in the property sold; and the Collector shall, after due enquiry, pass such order on such application as he deems fit. S. 210. Application to set aside sale by person owning to holding interest in property. (1) Where immoveable property has been sold under this code, any person either owning such property or holding an interest therein by virtue of a title acquired before such sale may, at any time within thirty days from the date of sale, apply to the Collector to have the sale set aside on his depositing (a) for payment to the purchaser a sum equal to five per cent of the purchase money; (b) for payment on account of the arrear, the amounts specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may have been paid since the date of sale on that account ; and (c) the cost of the sale : [Provided that, such application may be made by any such person belonging to a Scheduled Tribe within one hundred and eighty days from the date of sale.] (2) If such deposit is made within thirty days, 2[or as the case may be, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. We start with the decision of this Court in the case of Chilamkurti (supra) as strong reliance has been placed on the same on behalf of the appellant. This judgment has been relied upon to make good the contention that the provisions of Order XXI Rule 90 of the Code of Civil Procedure (hereinafter, CPC ) should be made applicable to the present litigation or in other words even in the writ proceedings under Article 226 of the Constitution. This decision is relied upon to fortify the submission that merely establishing a material irregularity or fraud is not sufficient to set aside the auction sale. It is necessary for the party aggrieved to go further and establish to the satisfaction of the court that the material irregularity or fraud in the conduct of the auction has resulted in substantial injury to the said party. Conversely, even if the party aggrieved has suffered substantial injury by reason of the sale, the same would not be sufficient to set aside the auction sale unless substantial injury has been shown to have been caused by a material irregularity or fraud in publishing or conducting the sale. 29. In Chilamkurti (supra), the respondent no. 2 before this Court was th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. Order 21 Rule 90 of the Code of Civil Procedure allows, inter alia, any person whose interests are affected by the sale to apply to the court to set aside a sale of immovable property sold in execution of a decree on the ground of a material irregularity or fraud in publishing or conducting the sale. Sub-rule (2) of Order 21 Rule 90 however places a further condition on the setting aside of a court sale in the following language: 90. (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. 13. Therefore before the sale can be set aside merely establishing a material irregularity or fraud will not do. The applicant must go further and establish to the satisfaction of the court that the material irregularity or fraud has resulted in substantial injury to the applicant. Conversely even if the applicant has suffered substantial injury by reason of the sale, this would not be sufficient to set the sale aside unless substantial injury has been occasioned by a material irregularity or fraud in pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in the impugned order. In other words, no case was made out by the judgment-debtor for setting aside of the sale of the property in question on the ground of committing any material irregularity or fraud in publishing or in conducting the sale so as to enable the Court to invoke its powers under Order 21 Rule 90(2) of the Code. 16. It is noticed that Respondent 1, in her application for setting aside the sale, had mainly raised four objections. Firstly, clear 15 days' notice was not given for sale of the properties as required under the Rules. Secondly, the valuation of the property was not properly mentioned in the documents concerned so as to enable the parties to know its proper valuation prevailing on the date of sale. Thirdly, the market value of the property on the date of auction was more than the price actually fetched in the auction, and fourthly, no proper publication including beating of drum was made before the date of auction due to which there was less participation of the bidders in the auction-sale. 17. The executing court dealt with all the four objections with reference to the record of the proceedings and found as a fact that none of the objection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry by reason of such irregularity or fraud. (3) No application to set aside a sale under this rule shall be entertained upon any ground which could have been taken on or before the date on which the proclamation of sale was drawn up. Explanation.-The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule. 34. Legislative changes: By the Code of Civil Procedure (Amendment) Act, 1976, the following changes have been effected in Rule 90: (i) In sub-rule (1), the words or the purchaser and other were inserted after the words the decree-holder and or any respectively; (ii) The proviso to old sub-rule has been renumbered as sub-rule (2) with necessary changes in phraseology and with addition of the words in publishing or conducting it after the words irregularity or fraud ; (iii) Sub-rule (3) has been inserted; (iv) Explanation to the rule has been added. 35. Object of Amendment: Rule 90, as originally enacted, reads thus: 90.(1) Where any immovable property has been sold in execution of a decree, the decree-holder, or any other person entitled to share in a rateable distribution of assets, or whose intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rements is that the order of attachment should be publicly proclaimed. The main object of the proclamation is to give publicity to the fact that the sale of the proclaimed property is in contemplation. The publication of the attachment is thus a step leading up to the proclamation of the sale. The question whether it is necessary to insert a provision to clarify the position on the subject, has been considered. In the draft Report which had been circulated, an Explanation had been proposed to Rule 90 to the effect that absence of or defect in attachment shall be regarded as an irregularity under this rule. After some consideration, it has been decided that no such provision need be inserted. In its Fifty-fourth Report, the Law Commission ordered: The Commission noted that the question whether the absence of, or irregularity in, attachment is, a defect in the publication or conduct of the sale within Order 21, Rule 90 had been discussed in several decisions. At one extreme was the view that attachment is not necessary at all before sale. At the other extreme stood the view that sale without attachment is void. A third view was that want of attachment is an irregularity but it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its decisions has said that this is the second stage after the success of the party in the civil proceedings. It is often said in our country that another legal battle, more prolonged, starts in execution proceedings defeating the right of the party which has succeeded in establishing its claim in civil proceedings. This is the reason why Order XXI Rule 90 provides that both the conditions enumerated therein should be fulfilled. (See: M/s Jagan Singh Co. v. Ludhiana Improvement Trust Ors. reported in (2024) 3 SCC 308) a. Difference between the auction sale conducted by the court in the execution proceedings initiated by the decree holder and the auction proceedings conducted by the State through its revenue authorities like Tahsildar, etc. 38. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject that the High Court in exercise of its power under Article 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court. This jurisdiction, though original in character as contrasted with its appellate and revisional jurisdiction, is exercisable throughout the territories in relation to which it exercises jurisdiction and may, for convenience, be described as extraordinary original jurisdiction. ( Emphasis supplied ) 43. Again, in Babubhai Muljibhai Patel v. Nandlal Khodidas Barot reported in (1974) 2 SCC 706, construing the words as far as it can be made applicable in Section 141 of the CPC (prior to Amendment of 1976), this Court observed: 10. It is not necessary for this case to express an opinion on the point as to whether the various provisions of the Code of Civil Procedure apply to petitions under Article 226 of the Constitution. Section 141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all proceedings in any court of civil jurisdiction as far as it can be made applicable. The wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H 87 : 79 Punj LR 100] , a Full Bench of three Judges held that Article 137 of the Schedule to the Limitation Act does not apply to an application for adding or substituting a party to a petition under Article 226 of the Constitution. It was also held that Section 141 of the Code cannot be pressed into service for applying the provisions including Order 22 of the Code in a petition under Article 226 of the Constitution. Later a Full Bench of five Judges of the same Court in the case of Teja Singh v. Union Territory of Chandigarh [AIR 1982 P H 169; (1981) 1 SLR 274 : 84 Punj LR 160] held that in view of Rule 32 of the Writ Rules framed by the High Court under Article 225 of the Constitution which provided that in all matters in which no provision had been made by those Rules, the provisions of Civil Procedure Code shall apply mutatis mutandis insofar as they were not inconsistent with those Rules the explanation which had been added to Section 141 of the Code by the aforesaid Amending Act, did not in any way nullify the effect of Rule 32 of the Writ Rules. Rule 32 of the Writ Rules is as follows: 32. In all matters for which no provision is made in these rules, the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ proceedings on the basis of Section 141 of the Code. When the Constitution has vested extraordinary power in the High Court under Articles 226 and 227 to issue any order, writ or direction and the power of superintendence over all courts and tribunals throughout the territories in relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction have to be traced and found in Articles 226 and 227 itself. No useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code. Of course, on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting relief to persons, who have invoked the jurisdiction of the High Court. It need not be impressed that different provisions and procedures under the Code are based on well-recognised principles for exercise of discretionary power, and they are reasonable and rational. But at the same time, it cannot be disputed that many procedures prescribed in the said Code are responsible for delaying the delivery of justice and causing delay in securing the remedy avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose. The public authorities are governed by the rule of law . Such authorities are constitutionally obliged in law to maintain absolute fairness and transparency during the conduct of the auction sale right from the initiation of the same till its completion. Judicial audit and scrutiny play a key role in ensuring that the public authorities do not act in an unreasonable manner. 52. The dictum as laid by this Court in Tata Cellular v. Union of India reported in (1994) 6 SCC 651 is that the judicial power of review is exercised to rein in any unbridled executive functioning. It was observed that the restraint has two contemporary manifestations viz. one is ambit of judicial intervention and the other covers the scope of the court s ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action. It was held that the principle of judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself. It was held that the principle of judicial review would apply to the exercise of contractual powers b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. ( Emphasis supplied ) 54. This Court in State of Punjab Others v. Mehar Din reported in (2022) 5 SCC 648, after referring to both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Section 193 of the Revenue Code. The materials on record reveal that the auction of the property was conducted before the expiry of 30 days time as prescribed under Section 194 of the Revenue Code. At the cost of repetition, Section 194 of the Revenue Code is reproduced hereunder:- Section 194: (1) Sale shall be made by auction by such persons as the Collector may direct. (2) No such sale shall take place on a Sunday or other general holiday recognised by the State Government nor until after the expiration of at least thirty days in the case of immovable property, or seven days in the case of movable property, from the latest date on which any of the said notices shall have been affixed as required by section 193. 57. Further, in terms of Section 195 of the Revenue Code, a fresh notice is required to be issued if the sale is postponed for any reason beyond 30 days and a fresh proclamation and notice has to be issued unless the defaulter consents to waive it. In this regard, it is relevant to note that a fresh proclamation was made on 23.11.2008 in furtherance of Section 195 of the Revenue Code. At the cost of repetition, Section 195 of the Revenue Code is reproduced hereunder:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced hereunder:- Section 208: Order confirming or setting aside sale. On the expiration of thirty days or, as the case may be, one hundred and eighty days from the date of the sale, if no such application as is mentioned in section 207 has been made, or if such application has been made and rejected, the Collector shall make an order confirming the sale: 62. However, respondent no. 4, vide its letter dated 12.01.2009 addressed to the Additional Collector, Head Office Jawar, misinformed that except for the writ petition pending before the High Court of Bombay, no other objection was received and thereby all requirements under Section 208 of the Revenue Code had been fulfilled, despite IFCI raising its objections. 63. From the aforesaid, the following inescapable conclusions are discernible: a. The sale of the Property took place before the expiry of the mandatory 30 days notice. This clearly shows that the sale was conducted in breach of the provisions of Section 194 of the Revenue Code. The notice was issued on 19.11.2008 and the auction came to be conducted on 03.12.2008. b. The sale certificate was issued on the same day, i.e., on the date of the auction itself, much before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Russel (1841) 9 Dowl 487, wherein it was held thus: It is difficult sometimes to distinguish between an irregularity and a nullity, but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity; if he cannot, it is a nullity. [see Dhirendra Nath v. Sudhir Chandra] (Emphasis supplied) 67. If we were to condone or overlook all the illegalities we have taken note of in para 63 of this judgment, applying the provisions of Order XXI Rule 90 of the CPC, the same would result in nothing but gross travesty of justice. Bureaucracy feels that accountability is an impediment to efficient discharge of the duty. Accountability is no more and no less than, the concept of accountability of a private concern to their shareholders. There is a distinction between prying into details of day-to-day administration and of the legitimate actions or resultant consequences thereof. To enthuse efficiency into administration, a balance between accountability and autonomy of action should be carefully maintained. Over-emphasis on either would impinge upon public efficiency. But undermini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or holding an interest therein by virtue of a title acquired before such sale may, at any time within thirty days from the date of sale, apply to the Collector to have the sale set aside on his holding depositing- (a) For payment to the purchaser a sum equal to five per cent of the purchase money (b) For payment on account of the arrear, the amounts specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may have been paid since the date of sale on that account; and (c) The cost of the sale: Provided that, such application may be made by such person belonging to a Schedule Tribe within one hundred and eighty days from the date of sale. (2) If such deposit is made within thirty days or, as the case may be, one hundred and eighty days from the date of sale, the Collector shall pass an order setting aside the sale. 70. As rightly argued by Mr. Dave, the said remedy was rendered illusory as the sale was finalised by the Tahsildar much before the confirmation by the Collector. In fact, the sale certificate was issued the possession was also handed over to the appellant. The confirmation was done by the Tahsildar much before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Assuming for the moment that the Additional Commissioner had no jurisdiction to adjudicate and decide the two appeals filed by the respondent No. 1 and respondent No. 6 respectively, yet the common order passed by the Additional Commissioner allowing the appeals and remanding the matter back to the authority concerned could not have been disturbed and the High Court rightly did not disturb the same. Had the High Court taken the view that the Additional Commissioner had no jurisdiction and the order passed by it was a nullity, the result would have been the revival of the illegal order passed by the Additional Collector confirming the sale. 74. 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. Vide : Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828; Maharaja Chintamani Saran Nath Shah ..... X X X X Extracts X X X X X X X X Extracts X X X X
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