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Judgment
Immaneni Panduranga Rao, J.—These two Writ Appeals arise out of the judgment of the learned single Judge in Writ Petition No. 366 of 1980 granting a writ of Certiorari quashing the order of the first respondent dated 29-12-79 confirming the order of the second respondent dated 11-9-79 in C.E.P. No. 252 of 78-79.
We shall adopt the ranking of the parties as in the Writ Petition. The petitioner borrowed Rs. 11,900/- from the Gudur Co-operative House Building Society Ltd., Gudur in 1955-56 payable in 180 monthly instalments of Rs. 100-46 ps. each. As he failed to repay the loan, the third respondent initiated proceedings u/s 61 of the Co-operative Societies Act (hereinafter referred to as ''the Act'') which was referred to an arbitrator u/s 62 of the Act and a decree was passed for Rs. 12,938-39 ps. Thereupon the third respondent initiated execution proceedings for recovery of Rs. 16,228-60 ps. The house of the petitioner was put to auction on 16-3-76. As the highest bid amount was only Rs. 22,000/- which was considered to be low, the bid was rejected. On 10-8-79 the auction was held again and the sale was knocked down in favour of the fourth respondent for Rs. 30,000/-. An objection petition was filed by the petitioner u/s 70 of the Act read with Rule 52(14) of the Rules on the grounds that the sale was vitiated by reason of the inadequacy of the price fetched in the auction and due publicity was not given. That objection petition was rejected on 11-9-79 and the sale was confirmed. Sale Certificate was issued to the fourth respondent on 22-1-80. Thereafter the petitioner filed a revision petition before the first respondent u/s 77 of the Act which was dismissed. Challenging that order, the Writ Petition was filed.
The learned single Judge upheld the submission of the Writ Petitioner that the action of the second respondent in functioning both as sale officer and the Registrar of the district was without jurisdiction, but, rejected the submission of the petitioner that the price of the property fetched was unreasonable or unduly low. However, having regard to the circumstance that the value of the rupee has considerably gone down over the years since fourth respondent had purchased the property, the learned single Judge quashed the order of the first respondent subject to the condition of the petitioner depositing within three months from the date of receipt of the order with the first respondent a sum of Rs. 61,500/-, permitting the fourth respondent to withdraw the same.
Challenging the finding of the learned single Judge that the action of the second respondent in functioning both as the sale officer and Registrar of the district was without jurisdiction, the fourth respondent in the Writ Petition filed Writ Appeal No. 1463 of 1986. Challenging the finding of the learned single Judge that no material irregularity was committed in conducting the sale resulting in substantial injury to the petitioner, the petitioner has filed Writ Appeal No. 1546 of 1987.
The learned counsel for the fourth respondent submitted that the view taken by the learned single Judge that the second respondent cannot discharge the dual functions of the Registrar of the district as well as the sale officer is not correct and having regard to the scheme of the Act, the view taken by the learned single Judge is not correct. Another submission made by the learned counsel for the fourth respondent is that after the auction, it was the petitioner who had approached the second respondent for setting aside the sale; that he did not raise any objection about the jurisdiction of the second respondent to act as the sale officer and also as the Registrar of the district and having voluntarily submitted to the jurisdiction of the second respondent, he cannot complain in the Writ Petition that the second respondent has no jurisdiction. He argued that when both the duties are vested in the same officer he can discharge both the duties and the Registrar of the district is not denuded of the powers by virtue of the delegation.
In support of his contention that the petitioner having invoked the jurisdiction of the second respondent for getting the sale set aside, cannot turn round and question his jurisdiction, he relied upon the decision of the Supreme Court in State of Orissa Vs. Mr. Brahmananda Nanda, . The learned Judges observed that where a candidate for selection knowing fully well the relevant facts about the members of the Selection Board voluntarily appeared for interview without raising any kind of objection against the constitution of the Selection Board and took a chance of favourable recommendation in his favour, it was not open to him to turn round and question the constitution of the Board when the decision was unfavourable to him. The learned Judges followed an earlier decision of the Supreme Court in Manak Lal Vs. Dr. Prem Chand, .
Section 70 of the Act empowers the Registrar or any person authorised by him to recover any amount due under a decision or an order of the Registrar, or any person authorised by him, or an arbitrator. The execution proceedings are initiated for recovery of the amount as determined by the arbitrator and, therefore, u/s 70(a) of the Act the Registrar or any person authorised by him is entitled to recover the amount. Rule 2(k) of Co-operative Societies Rules (hereinafter referred to as ''the Rules'') defines the Registrar of the district as a person authorised by the Registrar to exercise, in the district or any portion thereof, powers of the Registrar u/s 70. Rule 2(1) of the Rules defines the sale officer as an officer of the Co-operative Department etc., empowered by , Registrar by general or special order to attach and sell the property of defaulters or to execute decision or orders of Registrar of the district or to execute or to carry out any other orders of the Registrar of the District in regard to the attachment and sale of the property.
The learned Government Pleader placed reliance upon G.O.Ms.No. 38 dt.22-9-70. The Government in exercise of the powers conferred by Section 3 of the Act and in supersession of the earlier Government Orders appointed the authorities mentioned in column (2) of the Schedule thereto and conferred on them in respect of societies mentioned in column (3) thereof, the powers of the Registrar under the Act and the Rules framed thereunder specified in the corresponding entry in column (4) of the Schedule. Serial number 4 of that G.O. confers on the Co-operative Sub-Registrars in-charge of Taluks the powers of the Registrar under various Sections including Section 70 of the Act.
Interpreting the above G.O., the learned single Judge held that the second respondent being a Co-operative Sub-Registrar in-charge of a Taluk, the. conferral of the powers of the Registrar on him enabled him to function as the Registrar of the district, but, this will not cure the main legal infirmity, namely, that the Rules mandate discharge of the functions of sale officer on Registrar of the district by different persons. The learned counsel for the petitioner supported that observation of the learned single Judge by relying upon the Principles of Administrative Law by M.P. Jain & S.N. Jain, fourth edition at page 230 and argued that when an administrative agency is given the power to initiate proceedings against alleged violations and also to sit in judgment over the matter, such dual functions discharged by one and the same official amounts to a clear case of bias unless clearly permitted by legislation. Relying upon that passage, the learned counsel argued that when the same officer has conducted the sale, he cannot have any jurisdiction to decide the question of setting aside the sale, because he has already formed a biased view and as such the dual functions by the same officer is incompatible. According to the learned counsel for the petitioner, under the scheme of the Act and Rules the sale officer is an executing agency subordinate to the Registrar of the district, whereas Registrar of the district exercise duty of the Civil Court.
We cannot agree with above submission of the learned counsel for the petitioner. This being a proceeding for recovery of the debt due to a Cooperative Society, normally the Civil Court should have passed a decree and executed the same. But, the Act and the Rules framed thereunder provide a separate machinery for the recovery of the loan amount. A reading of Rule 52 shows that it is framed akin to Order XXI of the CPC and the provisions of CPC as applicable to the Civil Court are not excluded. That being the case, any objection raised with regard to the sale will be decided by the same officer who has conducted the sale under Order XXI Rule 90 C.P.C. The provisions of C.P.C. have stood the test of time for over eight decades and any order passed under Order XXI Rule 90 C.P.C. is not held to be vitiated on the ground of prejudice and bias. Any complaint of irregularity is decided by the same officer and such an order is not vitiated.
Inasmuch as G.O.Ms.No. 38 specifically confers the powers of the Registrar u/s 70 of the Act on the Co-operative Sub-Registrar in-charge of a Taluk, he is conferred with all the powers of the Registrar u/s 70 of the Act. By virtue of that conferral of power under the G.O. the Co-operative Sub- Registrar who is also the Registrar of the district is empowered to recover the amount due exercising his powers u/s 70(l)(a) of the Act by selling the property. Rule 2(1) of the Rules, no doubt, defines the sale officer as an officer empowered by the Registrar by general or special order to attach and sell the property, but, that does not mean that the officer on whom the powers u/s 70 have been conferred cannot exercise the powers of sale u/s 70 of the Act. What an officer who is empowered by the Registrar is entitled to do, can be done by the Registrar himself.
The learned counsel for the fourth respondent has brought to our notice that in the Writ Petition the Writ Petitioner did not challenge the jurisdiction of the second respondent to conduct the sale. In paragraph (8) of the affidavit filed in support of the Writ Petition what all the petitioner had complained of was that the second respondent acted without jurisdiction in confirming the sale as it was a function to be exercised by the Registrar of district, but not by the sale officer. He did not challenge the jurisdiction of the officer to conduct the sale. From the above discussion, we do not agree with the submissions made by the learned counsel for the fourth respondent that a single individual cannot discharge the functions of the sale officer and also the functions of the Registrar of the district and that there is a dichotomy inherent in the scheme of the Act and the Rules framed thereunder. We, therefore, disagree with the finding of the learned single Judge that the area within which the Registrar of the district and the sale officer may operate are differently demarcated and that there shall be two different functionaries discharging those functions.
We are of the opinion that the appellant is right in his submission that the Registrar is not obliged to empower another person or officer to function as a sale officer. He may choose to discharge all such functions himself. If he empowers another person to conduct the sale that person may not overstep the limits of its authority as a sale officer or usurp other powers entrusted with the Registrar u/s 70 of the Act. We cannot therefore assume that in all cases of sale in execution of a decree or order u/s 70 of the Act, there shall be a dichotomy of functionaries. According to us, Section 70 does not yield itself to such a construction.
As a matter of fact, the petitioner had not taken any objection to the 2nd respondent conducting the sale either as Registrar of the District or as sale officer. His only objection was to the 2nd respondent confirming the sale which he had himself conducted. That was the only objection which he had taken in his revision petition, namely that second respondent acting as the sale officer, Taluk Co-operative Officer as also Registrar of the District was violative of natural justice. It was not his case that the 2nd respondent had no jurisdiction to conduct the sale, since he was not empowered to do so, nor was it his objection that the 2nd respondent had ceased to have power of the Registrar u/s 70 of the Act because he had delegated the whole of his powers to the officer who was empowered to function as sale officer. He had not urged any such contention before the 1st respondent-revisional authority-nor before the learned single Judge. As a matter of fact, his arguments proceeded on the postulate that the 2nd respondent was both the Registrar of the District as also the Sale Officer. We did not therefore permit counsel for the petitioner to address arguments on the basis that there was no authority in the 2nd respondent to conduct the sale as he was not validly empowered under Rule 2(1) of the Rules. It is elementary that the petitioner is not entitled to develop his case from stage to stage and take the respondents by surprise.
It is clear from the tenor ) of the revision petition which he had filed before the 1st respondent and the order which he impugned as also the pleas which he raised in the Writ Petition that he wanted only to avoid the revisional order which affirmed the order of the 2nd respondent confirming the sale. In the nature of the above pleas and the specific reliefs which he had claimed in the Writ Petition, the only relief which this court could have granted, if at all, was to direct an authority or officer other than the 2nd respondent to consider the objection to confirmation of the sale. There was therefore no occasion for the learned single judge to set aside the sale which was, even according to the petitioner, conducted by an officer who was duly authorised to do so. We are of the opinion that counsel for the appellant is right in his submission that the relief which was granted was beyond the scope of the pleadings and the relief which the petitioner had sought.
The petitioner filed Writ Appeal No. 1546/87 challenging the direction given by the learned single Judge with regard to the deposit of Rs. 61,500/- in the event of setting aside the sale. The learned single Judge rightly observed that mere ordering of refund of Rs. 30,000/- paid by the 4th respondent and the registration charges of Rs. 1,500/- to the 4th respondent is highly inequitable and directed deposit of additional amount of Rs. 30,000/-by way of compensation to the 4th respondent. For the reasons mentioned by the learned single judge, we find that such a direction, in the event of the sale being set aside, is not unreasonable.
However, in the view we have taken above that the 2nd respondent had the fullness of powers u/s 70 of the A.P. Co-operative Societies Act to discharge all powers necessary for execution of a decree, it follows that the order of the learned single Judge in setting aside the sale is erroneous and is liable to be set aside.
In the result, Writ Appeal No. 1463 of 1986 is allowed and Writ Appeal No. 1546 of 1987 is dismissed. We direct each party to bear its own costs in both the appeals.