A-F^ HIGH COURT OF CHHATTISGARH: BSLASPUR Writ Petition No. 900 of 2001 PETITSONERS: Dhukhu Ram and others RESPONDENTS: Nahendra Kumar Jain and others Postforpronouncementofjudgmentandorder on /^-8-2008 ^ \ Sd/- Satish K. Agnihotri Judge 7?^8-2008- &^^-^-= HIGH COURT OF CHHATTISGARH: BILASPUR WrJtPetitionNo.900 of 2001 Petitioners 1. Dhukhu Ram, Son ofShivlal Marar. 2. Smt; Sushila Bai, widow of Late Shukhu Ram. 3. Sukhalal. 4. Smt. Ahiliya Bai, daughter of Late Shukhu Ram. 5, Smt, Usha Bai, daughter of Late Shukhu Ram. 6. SukaluRam. 7. Sukal. All resident of Hatkongera, Tahsil Kanker, District Bastar (Chhattisgarh). Respondents Versus 1) Mahendra Kumar Jain (Golcha), sonof Jeevanlal, resident of Rajapara, Kanker, District Bastar. 2) Assistant Registrar, Sodeties, Kanker. Co-operative 3) Adim Jati Sewa Sahkari Sanstha Mariyadit, Narthiyanawagaon, Bastar. 4) Vishwanath Singh, Sales Officer, Branch Manager, Jila Sahkari Kendriya Bank Maryadit, Kanker, District Bastar. 5) Recovery Officer, Co-operative Societies, Kanker, District Bastar. 6) Mahendra Kumar Golcha, son of Jeevanlal, resident of Kanker, District Bastar (wrongly mentioned). 7) M.P. State Co-operative Tribunal, Bhopat (MP). 8) Commissioner, Jagdalpur (CG). Bastar Division, ^ ;^K-^^'? 9) State of Chhattisgarh through Principal Secretary, Mantralaya, G.E. Road, Raipur (CG). (Writ Petition underArticle 227 ofthe Constitution of India) SB: Hon'ble Mr.Satish K. Agnihotri, J. Present: Shri H.B. Agrawal, Sr. Advocate with Ms. Rinki Tamrakar counsel for the petitioner. Shri Parag Kotecha, counsel for the respondents No.1 and 6. Shri Alok Bakshi, Govt. Advocate for the State/respondents No.2, 5, 8 and 9. Shri Sunil Sahu, counsel forthe respondent No.3 (Passed on this / S ' ^ay of August, 2008) The instant petition impugns the order dated 2-3-2001 (Annexure P/19) passed the MP State Co-operative Tribunal, Bhopal, in Second Appeal No. 424 of 1999 , whereby the appeal filed by the respondent No.1 was allowed. 2) The indisputable facts, in brief, as projected by the petitioners are that the petitioner No.1 is son and the petitioners No. 2 to 8 are legal representatives of deceased Shri Shivlal Marar, who obtained loan from Central Co-operative Bank Limited, Kanker. On account of non-payment of the loan, the respondent No.3 raised a dispute under Section 64 of the CG Co-operative Societies Act, 1960 (for short, "the Act, 1960") before the Assistant Registrar, Kanker. The Assistant Registrar passed an order on 8- 3-1976 directing the petitioners to deposit a balance of Rs.6738.50 and Rs.2471.20. In default, the auction was notified and the same took place on 14-6-1976. The sale was thereafter confirmed and sale deed was executed on 3-11-1976. The respondent No.1 failed to obtain possession of the disputed property. Thus, he filed a civil suit for possession in the court of 2-&1 ^ Civil Judge, Kanker, in Civil Suit No. 23-A/81. The judgment and decree was passed in favour ofthe respondent No.1 on 11-1-1985. 3) Being aggrieved by the said judgment and decree dated 11-1-1985, the petitioners preferred an appeal before the Additional District Judge, Kanker, in appeal case No.6-A/85. The appeal was also dismissed on 8-3-1989. Thereafter, the petitioners filed the first appeal before the Joint Registrar, Bastar, under the provisions of Section 77 of the Act, 1960 against the order dated 8-3-1976 passed by the Assistant Registrar, in the year 1988 on the ground that the sale certificate dated 3-11-1976, pursuant to auction was invalid as there was no notice as prescribed under Section 18 (2) (b) of the M.P. Sahkari Bhoom Vikas Bank Adhiniyam, 1966 (for short, "the Adhiniyam, 1966") and there was gross irregularity in the auction proceedings. The appeal before the Joint Registrar was filed along with an application for condonation of delay under Section 5 of the Limitation Act, 1963. The Joint Registrar, by order dated 3-9-1997 (Annexure P/14) set aside the auction proceedings and consequent there-upon sale certificate 3-11-1976. The respondent No.1 was held entitled to theamount deposited by him with interest. The appeal was accordingly allowed. 4) Being aggrieved, the respondent No.lpreferred second appeal before the Co-operative Tribunal, wherein the respondent No.6 was impleaded as the respondent No.12 before the State Appellate Tribunal. The Appellate Tribunal, after having considered all the aspects of the matter, came to the conclusion that the order dated 8-3-1976 and thereafter sale certificate consequent upon auction proceedings, were challenged before the Joint Registrar after a period of about 12 years. A person aggrieved can file an appeal against any auction proceedings, sale certificate or the order passed by the Assistant Registrar within a period of one month. Even if it is accepted that the order to put the land in dispute on auction was known to the petitioners in the year 1981, the petitioners ought to have filed an appeal immediately. The petitioners have taken more than seven years from the year 1981 to file the first appeal before the Joint Registrar against the order dated 8-3-1976 and the sale certificate dated 3-11-1976. 5) On being unsuccessful in obtaining possession of the disputed property after sale was confirmed, a civil suit was filed by the respondent No.1 forpossession ofthedisputed property. The same was decreed by the Civil Court on 11-1-1985 and the appeal thereagainst filed before the Additional District Judge, was also dismissed which has attained finality. Thus, entertaining an application after a period of 12 years from the date of issue of sale certificate and seven years from the date of information allegedly received by the petitioners No. 1 to 7 is barred by limitation as well as by constructive resyt/c//cate. Thelearned Tribunal further held that there was no satisfactory and justified reasons explaining the long delay. Thus, the order passed by the Joint Registrar, firstly, on account of delay, secondly, on account of lack of jurisdiction as once the civil Court passed the judgment and decree of possession, the Joint Registrar has no jurisdiction, was bad in law and unsustainable. If there was any grievance, the petitioners herein (respondents therein) ought to have preferred a civil suit for declaration or for any other relief. After decree passed by the civil Court, the Joint Registrar has no jurisdiction to entertain the first appeal against the order of Assistant Registrar after such a long delay. Accordingly, the appeal was allowed on 2-3-2001 Thus, this petition under Article 227 ofthe Constitution of India. 6) Shri H.B. Agrawal, learned Sr. counsel with Ms. Rinki Tamrakar, learned counsel appearing for the petitioners would submit that the auction 'ys>. proceedings is vitiated onaccount of the fact that the notice prior to sale as required under Section 18 (2) (b) of the Adhiniyam, 1966 was not issued to the petitioners. The name of the village mentioned therein was also wrong. This court, in the matter of Shashi Bhushan (dead on 1985) through Legal Representatives and others Vs. District Cooperative Land Development Bank Ltd., Ambikapur and others (Writ Petition No. 2801 of 1993) order passed on 16-1-2008, has set aside the auction of disputed mortgaged land on the ground that no notice as contemplated under Section 18(b)(2) of the Adhiniyam, 1966 was issued. Learned counsel would further contend that even ifthe civil Court has decreed the civil suit for possession ofthe disputed property in favour of the respondent No.1, the petitioners have right to challenge the order of the Assistant Registrar before the Joint Registrar. Learned counsel would next contend that no civil suit was filed by the petitioners, but the same was filed by the respondent No.6. 7) Per contra, Shri Parag Kotecha, learned counsel appearing for the respondents No.1 & 6 would submit that the appeal before the Joint Regjstrar was barred by constructive res judicata under the provisions of Section 11 ofthe Act, 1960 as the civil Court has already considered the issue and passed the judgment and decree of possession in favour of the respondent No.1. The execution proceedings for execution of the decree passed by the civil Court is pending consideration and the revisipn petition filed thereagainst was dismissed as withdrawn. The Joint Registrar has no jurisdiction to entertain the first appeal after along delay of 12 years without reasons when the decree of possession was passed in favour of the respondent No.1. The learned Tribunal has rightly held that if the petitioners have any grievance, they could have filed an appropriate proceedings in the civil court for appropriate relief. The order passed by the Joint Registrar, if allowed, to subsist, that would negate the judgment and decree passed by the civil Court in favour of the respondent No.1. 8) I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 9) This petition is preferred under Article 227 of the Constitution of India in its supervisory jurisdiction. The scope of the High Court in its supervisory jurisdiction is limited to examine perversity, irregularity and illegality apparent in the impugned order. This Court, even if second view is possible, cannot substitute the finding recorded by the authority below by its own finding. 10) It is well nigh settled that the High Court while exercising its supervisory jurisdiction under Article 227 of the Constitution of India has limited jurisdiction that unless there is any grave miscarriage of justice or flagrant violation of law or the Court has mis-directed its order on law and fact, the High Court should restrain itself from interfering with such finding made by the courts below. In Waryan Singh and another Vs. Amarnath and another1, the Supreme Court held that the power of superintendence conferred by Article 227 of the Constitution of India be exerdsed most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds oftheir authority and not for correcting mere errors. 11) In the matter of Sree Jain Swetambar Terapanthi Vid (S) V. Phndan Singh and others , the Supreme Court in para 12 held as under: "12. It may be pointed out that it is one thing to conclude that the trial Court has not recorded its prima facie satisfaction on merits but granted the AIR 1964 SC 215 'AIR 1999 SC 2322 T" temporary injunction and it is another thing to hold that trial Court has gone wrong in recording the prima facie satisfaction and setting aside that finding on the basis of the material on record because it has not considered the relevant material or because it has erroneously reached the finding or conclusions on the facts established. In the first situation, the appellate Court will be justified in upsetting the order under appeal even without going into the merits of the case butin the second eventuality, it cannot set aside the impugned order without discussing the material on record and recording a contrary finding. The High Court proceeded to set aside the order of the trial Court on the first ground ignoring the aforementioned findings of the trial Court, the order under appeal is, therefore, unsustainable". 12) In the matter of Surya Dev Rai Vs. Ram Chander Rai and others3 the Supreme Court reiterated the legal position of law as settled earlier by the Supreme Court in catena of decisions that the High Court in supen/isory jurisdiction would not convert itself into a court of appeal and indulge in the re-appreciation of evidence or evaluation of errors or correct errors in drawing inference or correct mere technical or formal errors. 13) In the case on hand, the facts with regard to the re-payment or non- repayment of the loan amount cannot be considered at this stage. The Assistant Registrar passed an order on 8-3-1976 for making payment. On failur.e, the mortgaged property was put on auction and the respondent No.1 purchased the said land and sale was confirmed on deposit of the requisite amount. The petitioners have not chosen to challenge the order of the Assistant Registrar in appeal within the limitation period of thirty days in the ' 2003 (6) SCC 675 Court of Joint Registrar, Co-operative Society. The respondent No.1 had taken the matter to the Civil Court for obtaining a decree for possession of the disputed property wherein a judgment and decree was passed in favour of the respondent No.1. The petitionersknowing fully well the dispute, preferred an appeal before the Additional District Judge, which was also dismissed and as such, the judgment and decree passed by the trial Court attained the finality. The matter is pending consideration before competent executing court. A revision petition filed thereagainst was also dismissed as withdrawn. Thus, the State Co-operative Tribunal was right in holding that the Joint Registrar committed an error in entertaining the first appealunder the provisions of Section 77 of the Act, 1960. When the limitation was only 30 days, the petitioners failed to give strong and cogent reasons for explaining delay of more than 12 years. 14) In the matter of Karnataka Power Corporation Ltd. through its Chairman & Managing Director and another vs. Thangappan and another4, the Hon'ble Supreme Court observed as under: "Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution; In an appropriate case the HighCourt may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, cause prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad V. Chief Controller of impors and Exports. Of course, the discretion has to be exercised judicially and reasonably." 4 (2006 4 SCC 322 ^^iv-s^ y-T r^ 15) On laches and delay in agitating the grievances before the Court the Hon'ble Supreme Court in the matter of State of Punjab and another vs. Balkaran Singh5 observed as under: "22. According to us, the suit is also barred by acquiescence and estoppel. No one in a service can sleep over the question of seniority for more than 12 years and then come to court seeking a relief which will upset the seniority of a number of persons who had been shown as seniors in the respective seniority lists. Therefore, on t he face of it, a declaratory relief that will have the effect of altering a twelve-year-old and anine-year old seniority list could not have been grunted by the courts below." 16) The Supreme Court in the matter of U.P. Jal Nigam and another vs, Jashwant Singh and another6 observed as under: "6. The question of delay and laches has been examinedby this Court in a series of decisionsand laches and delay has been considered to be an important factor in exercise of the discretionary relief underArticle 226 ofthe Constitution. When a person who is not vigilant of his rights and acquiesces with the situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to person similarly situated who was vigilant about his rights and challenged his retirement which was said to be made on attaining the ageof 58 years..." 17) The Registrar failed to appreciate that during the period when the petitioners slept over their rights a decree of possession was passed by the 5 (2006) 12 SCC 709 6(2006)11SCC464 If^":^ 10 ^>LI civil Court, wherein the petitioners participated and the appeal filed by the petitioners was also dismissed. The impugned order of the State Tribunal does not suffer from any irregularity or infirmity warranting interference by this Court. The order is unexceptional and deserves to be maintained. The order dated 16-1-2008 passed by this Court in the matter of Shashi Bhushan (supra) as cited by learned counsel for the petitioner is of no help to the petitioners as the facts are entirely different. In the present case, the petitioners have not approached the Joint Registrar, Co-operative Society directly and there is an order of possession passed by the civil Court in favour of the respondent No. 1. 18) For the reasons mentioned hereinabove, the petition is dismissed. Costs easy. Sd/- Satish K. Agnihotri Judge Raju