Santosh Bhoju Patil v. The State of Maharashtra & Ors.

By the present Letters Patent Appeal, the appellant is taking exception to the order of dismissal of Writ Petition No. 11028/2010, passed by the learned Single Judge.

Agricultural land Gat No. 711, situated at village Adawad, Taluka Chopada, was mortgaged with (2) lpa49-11 the respondent No. 3 - Cooperative Society, by respondent No. 5, being the karta of the joint Hindu family. The present appellant had consented for the same. Thereafter, for non-payment of the loan amount, respondent No. 3 Society obtained a recovery certificate from respondent No. 2 - Deputy Registrar of Cooperative Societies. The agricultural property was thereafter attached and put to auction by a public notice published in the newspapers. The sale was conferred in favour of respondent No. 8, upon his depositing the entire auction money of Rs. 15,03,000/-. The appellant filed Writ Petition challenging the said auction on the ground that after the execution of mortgage-deed, the entire joint family property was partitioned in which the land in question came to his share. It was the interse agreement between the co-parsoners that the respondent No. 5 would repay the loan. Under the circumstances, in the writ petition, exception was taken to the exercise of auctioning the agricultural land.

During the pendency of the writ petition, (3) lpa49-11 the appellant filed an application for leave to amend to insert the additional objection that the recovery certificate was obtained by the respondent No. 3 Society from the respondent No. 2 - Deputy Registrar without issuing any notice. At the time of hearing of the said application, the writ petition itself was heard and the learned Single Judge disposed of the writ petition by observing that the Court is not inclined to interfere in exercise of the writ jurisdiction in the above facts.

Mr. Vijay B. Patil, learned counsel for the appellant, vehemently submitted that the provisions of section 101 of the Maharashtra Cooperative Societies Act, 1960 read with the relevant rules would show that the notice was essential to the present appellant. Therefore, injury is caused to him of auctioning of his own land. Hence, inter alia supporting the earlier submissions that he was not liable to pay the loan amount, learned counsel for the appellant submitted that the appeal be allowed. Per contra, the respondent Nos. 3 and 4 supported the order of learned Single Judge. (4) lpa49-11

It is an admitted fact that the property in question is a joint family property which admittedly is yet to be recorded as partitioned property between the co-parsoners. The respondent No. 5, the eldest male member of the family, has not come forward to say that he did not receive any notice during the recovery proceedings. According to the appellant, merely there is interse arrangement of the partition between the brothers, that too after the present encumbrance was made over the joint family property. The property is already auctioned admittedly by a public notice interalia published in the newspaper. The auction is confirmed and thus, third party interest is created. Not only this, when the appellant raised objection before the respondent No. 2 - Deputy Registrar, vide his application dated 26th October, 2009, challenging the auction as illegal, the letter issued by the said respondent dated 10th June, 2010 shows that the said objection was raised after thirty days from the date of public auction. In view of all these facts, no impropriety or illegality is committed by the learned Single (5) lpa49-11 Judge. The appeal is, therefore, dismissed.

In view of dismissal of this letters patent appeal, civil application No. 2452/2011 does not survive and hence, stands dismissed accordingly. [M.T. JOSHI, J.] [D.B. BHOSALE, J.] NPJ/lpa49-11