@JUDGMENTTAG-ORDER
N.K. Patil, J.@mdashThe Petitioner, questioning the legality and validity of the auction notification dated.6th February 2002 bearing No. TAX:BKL.CR:9/2001-02 on the file of the second respondent vide Annexure A, has presented the instant Writ Petition. Further, the petitioner has sought for a declaration, declaring that the sale held on 25th February 2002 as per sale proceedings vide Annexure B as illegal and consequently quash the sale proceedings and also to quash the order of confirmation of sale held on 9th August 2002 bearing No. Ddis.Tax.CR. 17/2002-03 vide Annexure H on the file of the first respondent.
2. The brief facts of the case are that, the father of the petitioner was in arrears of tax to the Commercial Tax Department to the tune of Rs. 7,691/- and the Commercial Tax Department has referred the matter to the Deputy Commissioner for Recovery to initiate the revenue recovery proceedings against the father of the petitioner. The Deputy Commissioner, in turn, has directed the second respondent to initiate the revenue proceedings against the father of the petitioner as envisaged under the Karnataka Land Revenue Act (hereinafter referred to as the "Act"). The second respondent herein has issued the auction Notification dated 6th February 2002 vide Annexure A, fixing the date of auction on 25th February 2002 at 11.00 A.M. in the Office of the second respondent. Accordingly, the auction was held on 25th February 2002. The third respondent herein and two other persons participated in the said auction and the third respondent herein was the highest bidder. In pursuance of the highest bid caused in the auction alleged to have been conducted by the Deputy Tahsildar, Nadakacheri, Panja, Sulya Taluk, Dakshina Kannada Dist., the third respondent has alleged to have deposited 25% of the auction bid amount. Be that as it may.
3. The father of the petitioner had paid the arrears of tax to the Commercial Tax Department on I4th March 2002 in a sum of Rs. 7,691/-. Thereafter, in pursuance of the communication from the Tax Department, demanding a sum of Rs. 1,320/-, being the cost of the alleged auction conducted by the Deputy Tahsildar, Sulya Taluk, the father of the petitioner has deposited the said amount vide Annexure D. When things stood thus, the third respondent herein has given the application dated 4th April 2002 vide Annexure E, requesting the second respondent to refund the amount deposited by her on the ground that subsequent to auction, the father of the petitioner has paid the amount to the Tax Department. Thereafter, the second respondent has sent the impugned communication dated 19th April 2002 vide Annexure F to the father of the petitioner directing him to pay 5% interest to the auction purchaser namely the third respondent herein on 25% of the auction bid amount deposited by her. Thereafter, the notice was sent on 13th May 2002 vide Annexure G demanding Rs. 2,600/- being the 5% interest on the 25 % of the auction bid amount. Without taking into consideration the subsequent developments as stated supra, the first respondent herein has confirmed the auction in favour of the third respondent by his order dated 9th August 2002 vide Annexure A. Before confirmation of the auction by the first respondent, the brother of the petitioner has filed an application u/s 176 of the Act before the Assistant Commissioner to set aside the auction sale proceedings, which was not in accordance with law. The said application filed by the brother of the petitioner has been rejected by the Assistant Commissioner - the first respondent herein on the ground that, the said application has not been filed within 90 days from the date of conducting of auction, by its order dated 5th November 2003. The petitioner, assailing the correctness of the impugned alleged auction notification held, without the authorisation by the competent authority and confirmation order passed by the first respondent, has approached this Court On the ground that, the entire proceedings initiated and concluded by respondents 1 and 2 are contrary to the mandatory provisions of the Karnataka Land Revenue Act and contrary to the material on record. Therefore, the petitioner was constrained to approach this Court assailing the impugned orders referred above.
4. The principal submission canvassed by the learned Counsel appearing for the petitioner is that, the alleged auction notification issued by the second respondent and the procedure followed by the authorities are contrary to the mandatory provisions of the Act and are arbitrary and without jurisdiction. Further, he submitted that, the respondents could not have sold the schedule property for recovery of paltry sum of Rs. 7,691/- when the value of the property is more than Rupees ten lakhs. The respondents without properly assessing the value of the property have exceeded the jurisdiction by notifying the property for sale and confirmed the said sale without following due procedure and also acted unreasonably in the matter of selling schedule property and confirming the same. Further, he vehemently submitted that, as a matter of fact, the father of the petitioner has already paid the arrears of tax to the Tax Department and the same was accepted and also the cost of the auction conducted by respondents 1 and 2 through Deputy Tahsildar, Sulya Taluk has also been paid.
5. The learned Counsel appearing for the petitioner further submitted that, in view of the well settled law laid down by the Apex Court in the case of
6. Per contra, the learned Senior Counsel appearing for third respondent, inter alia, contended and justified the impugned notification stating that, the confirmation order passed is in strict compliance of the mandatory provisions of the Act and no error or illegality as such as been committed by the respondents. Further, the petitioner has no locus standi to present the instant writ petition since the petitioner, without exhausting alternative and efficacious remedy available to him under the Act, has approached this Court. If at all, the petitioner had any grievance against the impugned auction notification or confirmation of sale, he could always have filed necessary application u/s 176 of the Act before the competent authority for cancellation of sale. Further, the learned senior Counsel has taken me through the order sheet dated 5th November 2003 on the file of the Sheristedar, Office of the Assistant Commissioner, Puttur, Dakshina Kannada Dist. wherein the appeal filed by the petitioner has been dismissed on the ground that, it is filed under wrong provision and since no application was filed within 90 days, he submitted that, the said order has reached finality. Further, the learned senior Counsel submitted that, once the Certificate is issued by the Deputy Commissioner for initiating proceedings for arrears of tax to be paid by the father of the petitioner, by way of recovery of land revenue, the petitioner cannot assail the same before this Court stating that, the impugned notification and confirmation of sale made in favour of the third respondent are bad. Therefore the petitioner has not made out any good grounds for interference by this Court in the impugned auction notification or confirmation of sale made by respondents 1 and 2.
7. The learned Government Pleader appearing for respondents 1 and 2 has filed detailed objections, narrating the entire facts and circumstances and the way in which the proceedings are initiated and concluded. However, she is unable to state before this Court as to whether the arrears of tax paid by the father of the petitioner in pursuance of the tax due to the Commercial Tax Department was accepted and after acceptance of the said amount, whether the Tax Department has communicated the same to the Deputy Commissioner or the respondent 1 and 2. She submits that, she does not have any material nor has she stated anything with regard to that aspect in her statement of objections.
8. After hearing the learned counsel appearing for the parties after thorough evaluation of the material available on record, with the assistance of the respective counsel appearing for the parties and after careful perusal of the impugned auction notification issued by the second respondent vide Annexure A dated 6th February 2002 and the confirmation order passed by the first respondent vide Annexure H dated 9th August 2002, it is evident on the face of the auction Notification and the confirmation order that, both the authorities have committed an error of law and irregularity resulting in serious miscarriage of justice to the petitioner.
9. It is not in dispute that, the father of the petitioner was in arrears of tax to be paid to the Commercial Tax Department. In view of non payment of the said amount, the Commercial Tax Department has requested the revenue authorities to initiate proceedings for recovery of the said tax amount of Rs. 7,691/- under the Land Revenue Act. In the instant case, it is significant to note that the impugned Notification is issued by the second respondent for auction of an extent of 29 cents in Sy.No. 196/3A2 for recovery of a sum of Rs. 7,691/-. If the authority wanted to recover the arrears of tax by way of revenue, the authority must have notified the exact extent or a portion of the said survey number which is equal to the arrears of tax due from the petitioner and must have clearly mentioned the extent to which the auction is conducted. But, in the instant case, the entire extent of 29 cents in the said survey number has been notified including the existing residential house. This shows as to how the second respondent, without proper application of mind and contrary to the mandatory provisions as envisaged under Sections 160, 164(1) and (2) of the Karnataka Land Revenue Act, 1964, has conducted the proceedings. Further, it is pertinent to note that, auction was conducted on 25th February 2002 and the third respondent was the highest bidder and her bid was accepted and 25% of the highest bid amount was deposited by the third respondent. As per Section 174 of the Act, auction purchaser should deposit 25% of the amount of the auction bid and balance to be deposited within 15 days from the date of holding of auction. But in the instant case, the third respondent has not produced any document to show that, she has deposited the amount within fifteen days from the date of auction which is held on 25th February 2002. As rightly pointed out by the learned Counsel appearing for petitioner; this clearly shows the manner in which the authorities have proceeded to complete the auction proceedings, which are contrary to the material on record and the observations made by the Apex Court in the case of AMBATI NARASAYYA (supra) and in the case of DESH BANDU GUPTA (Supra). In the case of AMBATI NARASAYYA (supra), it is held as follows:
"Auction sale - Not entire property but only such portion as would satisfy decree should be sold - This is obligatory on Court and not just discretion - Tendency to blindfold sell entire property deprecated."
It is worthwhile to extract paragraph 7 of the judgment in the case of AMBATI NARASAYYA v. M. SUBBA RAO (SUPRA) which reads as hereunder:
"Para.7: It is of importance to note from this provision that in all execution proceedings, the Court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may seem necessary to satisfy the decree. If the property is large and the decree to be satisfied is small, the Court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree-holder. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provision of law only such portion of the property should be sold. This in our opinion, is not just a discretion, but an obligation imposed on the Court. Care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition. The sale held without examining this aspect and not in conformity with this requirement would be illegal and without jurisdiction.
Further, the Hon''ble Supreme Court in the case of DESH BANDU GUPTA v. N.L. ANAND & RAJINDER SINGH (supra) has held as follows-
"The non application of mind whether sale of a part of the property would satisfy the decree debt is a material irregularity doing substantial injury to the appellant attracting Order 21 Rule 90 C.P.C. In either case, the sale is liable to be set aside. It is true that, there is distinction between mere irregularity and material irregularities and the sale is not liable to be set aside on proof of mere irregularity. It must be material irregularity and the Court must be satisfied that on account thereof, substantial injury was sustained by the appellant."
10. In the instant case, in the impugned auction notification dated 6th February 2002 vide Annexure A, the schedule is shown as Sy.No. 196/3A2 measuring 29 cents. But, the said Notification does not contain the ground reality of the said land. As a matter of fact, the land in question also consists of a residential house abutting the vacant land and the said Notification also does not disclose the boundary of the said land. This fact proves beyond all reasonable doubts that, the authorities have proceeded without proper application of mind as to whether sale of part of the property would satisfy the decree debt, which is a material irregularity doing substantial injustice to the petitioner. Therefore, it very much violates the mandatory provisions of Order 21 Rule 90 CPC. As rightly held by the Apex Court, as stated supra, in either case, the sale is liable to vitiate. In the instant case, the respondents have committed material irregularity and therefore, this Court is satisfied that, on account thereof, substantial injury is sustained by the petitioner and even, the authority has failed to take the report from the competent authority regarding the total value of the land in question measuring 29 cents including the residential house. Therefore, in my considered view, at any stretch, the entire proceedings initiated and concluded by the authorities cannot be sustained. Hence, they are liable to be set aside.
11. Therefore, in view of the well settled law laid down by the Hon''ble Supreme Court in the cases referred above and having regard to the facts and circumstances of the case, as stated above, in my considered view, at any stretch the impugned notification and the alleged auction sale held by the Deputy Tahsildar and the confirmation order passed by the first respondent cannot be sustained. Hence, they are liable to be set aside and the submission of the learned counsel appearing for the third respondent, as stated supra, cannot be accepted, having regard to the facts and circumstances and the manner in which the respondents 1 and 2 have proceeded and passed the impugned orders. The confirmation order passed by the first respondent is one without jurisdiction. As a matter of fact, the father of the petitioner has paid the entire arrears of tax to the Commercial Tax Department and the said Department has failed to communicate to the Deputy Commissioner. In view of non co-ordination between the Revenue Department and the Tax Department, the petitioner should not be deprived of his valuable rights in the property in question. After the death of the father of the petitioner, the petitioner succeeds the said property along with the family members and this fact is not disputed by the learned Government Pleader appearing for respondents 1 and 2 orally or in the statement of objections filed by her. As a matter of fact, the respondents 1 and 2 have in their objections stated in unequivocal terms that, the father of the petitioner has paid the sum of Rs. 7,691/- to the Commercial Tax Department, Puttur, on 14th March 2002 and again a sum of Rs. 1,320/- on 16th March 2002 towards the expenses of auction alleged to have been conducted in pursuance of the impugned Notification issued vide Annexure A. This material was very much available before the first respondent and he ought to have verified from the concerned authority before proceeding to pass the order of confirmation. Further, the first respondent herein has failed to look into the application dated 4th April 2002 filed by the third respondent u/s 178 of the Act, requesting the second respondent to refund the 25% of the auction bid amount deposited by her on the ground that subsequent to holding of auction, the father of the petitioner has paid the entire tax to the Commercial Tax Department and the said application filed by the third respondent was very much available on file. The first respondent has not made any efforts to look into the material available on tile and proceeded to pass the confirmation order. Therefore, the said order passed by the first respondent is one without jurisdiction and contrary to the mandatory provisions of the Act and Rules. Therefore, in my considered view, the entire proceedings initiated and concluded by respondents 1 and 2 cannot be sustained.
12. Having regard to the facts and circumstances of the case, as stated above, after taking into consideration the factual and legal aspect of the matter, as enumerated above, the writ petition filed by the petitioner is liable to succeed and accordingly, the Writ Petition filed by the petitioner stands disposed of with the following directions:-
i) The Writ Petition filed by the petitioner is allowed.
ii) The auction notification dated 6th February 2002 bearing No. TAX:BKL.CR:9/2001-02 on the file of the second respondent vide Annexure A and the confirmation of auction sale dated 9th August 2002 in No. DDS:TAX:CR:17:2002-03 on the file of the first respondent vide Annexure H are hereby set aside.
iii) Further, the alleged auction held on 25th February 2002 vide Annexure B is also set aside.
iv) However, it is needless to observe that, if the third respondent makes an application to the second respondent for refund of the bid amount, deposited by her, in view of alleged auction, the second respondent shall refund the said amount immediately to the third respondent.
13. With these observations, the Writ Petition filed by the petitioner stands disposed of.
