I. Case Reference
| Case Citation | : | (2021) ibclaw.in 29 DRAT |
| Case Name | : | M/s. Laxmi Ganapathi Paper Mills Ltd Vs. Canara Bank |
| Appeal No. | : | Appeal No. 3 of 2021(Diary No. 164 of 2020) (Arising out of Recovery Appeal No. 5 of 2019, M.P No.207/2019, R.P No. 197/2002, in O.A No. 1785 of 1999 on the file of DRT-I, Hyderabad) |
| Judgment Date | : | 22-Feb-21 |
| Court/Bench | : | DRAT Kolkata Bench |
| Act | : | SARFAESI Act 2002 |
| Present for Appellant(s) | : | Mr. Sarathi Dasgupta for Mr.Dipendra Nath Chunder |
| Present for Respondent(s) | : | Ms. Aparajita Ghose |
| Chairperson | : | Mr. Justice Dr. T. Ravi Shankar |
II. Full text of the judgment
O R D E R
This appeal impugns the order of the learned Presiding Officer, DRT-1, Hyderabad passed in Appeal No.5of 2019.
The facts of this case may be stated in brief, as follows: –
The appellant was the successful bidder in the auction conducted by the learned Recovery Officer, DRT, Hyderabad, who sold an extent of Acre 1.35 Guntas in Survey No. 90/2 in GachiBowli in Ranga Reddy District, Telangana, pursuant to the Recovery Certificate in RP No.197/2002. After the auction was over the Recovery Officer, on the request of the appellant included the names of three others also who neither took part in the bidding nor were represented by the appellant who bid singly for himself in the auction and issued the order of confirmation in favour four persons wherein the appellant was one amongst the four. Thereafter, the sale certificate was issued in favour of four persons dividing the entire extent of land into 7 schedules with different boundaries being 1A, 1B, 1C., 2A, 2B, 3 and 4.as stated above.
Later, when the appellant submitted a building plan to the Greater Hyderabad Municipal Corporation (GHMC) for approval it was pointed out by GHMC that the road on the western boundary is only 80 ft. and also further that the road on the southern side of the property is 30 ft.
In view of the above, the appellant filed M.P No. 207 of 2019 before the learned Recovery Officer DRT1 Hyderabad requesting for the issuance of a rectification deed and the request of the appellant was negative by the Ld. Recovery Officer on the ground that the Recovery Officer had no power to issue the rectification of deed as prayed for by the appellant.
Being aggrieved by the same the appellant preferred an appeal before the learned Presiding Officer, DRT-1, Hyderabad and the learned Presiding Officer also passed orders dismissing the appeal.
It is stated by the appellant that certain mistakes had crept in the measurements at that point of time when the Sale Certificate was issued. The case of the Respondent Bank is that the property had been sold with the measurements found in the documents which were mortgaged with the Respondent Bank. The Records of the Department of Survey and Land Records reveal that the length abutting the road on the western side is 444 ft. and that the width of the road on the western side is 80 ft. The Respondent Bank has stated that the measurements as presently stated by the appellant are in accordance with the Government Records and that the bank has no objection for the issuance of the Rectification deed and that same may be issued as prayed for by the appellant.
Learned counsel for the appellant took this Tribunal through the sketch of the land and explained that the rectification deed is required to be executed as per the Records of the Government. Learned counsel for the Bank stated that the orders may be passed by this Tribunal as per Government Records in this appeal.
A report regarding the auction was called for from DRT1 Hyderabad to ascertain the details. It was submitted by the Ld. Recovery officer and the same was perused. The said report reveals that the 3 persons who had not participated in the bidding process either jointly or individually or represented by the appellant had received the letter of confirmation and also the certificate of sale in their favour jointly along with the appellant. Notice was directed to be issued to the said 3 persons and in spite of the issuance of Notices they had chosen not to appear.
Heard both sides.
It is seen that the appellant had submitted a building plan to the Greater Hyderabad Municipal Corporation (GHMC) for approval and it was pointed out by the GHMC that the road on the western boundary is only 80 ft. and as per the Layout Regularization Scheme (LRS)the road on the southern side is 30 ft. wide and the same is reflected in the GHMC LRS proceedings No.26092017121114/WEZ/GHMC/2017 dated 26.9.2017.The Learned Recovery Officer had dismissed the M.P filed by the appellant holding that a Recovery Officer is not vested with powers under the Second Schedule of the Income Tax Act for rectification of the boundaries or dimensions of a property which had been sold in an auction. In the appeal against the order of the learned Recovery Officer, the learned Presiding Officer has come to the conclusion that the appellant has not made out a case for him to interfere with the order of the learned Recovery Officer. The Learned Presiding Officer had not taken note of the GHMC proceedings wherein the measurements are set out clearly and it is also seen that that the measurements were arrived at by the GHMC after conducting a physical verification. The GHMC proceedings and the physical verification clearly establish that the road on the western side of S.No.90/2 is of 80 feet width, the length of the western side of S.No.90/2 is 444 feet and the width of the road on the southern side is 30 feet and same is also fortified by the records of the other authorities in this case.
The points that arise for consideration in this case may be stated as follows: –
(1) Whether the appellant is entitled to the issuance of the Rectification deed?
(2) To what other relief is the appellant entitled to?
Point No.1.
The appellant had participated in the auction conducted by the learned Recovery Officer on 21.4.2004 and was the highest bidder in the said auction and it was knocked down at Rs.2.85 crores. Thereafter, the learned Recovery Officer included three other persons as also bidders and issued the confirmation in favour of totally four persons on 24.5.2004. Thereafter the Sale Certificate came to be issued for the property measuring acre 1.35 Guntas in favour of the appellant and three others and it was divided into 7 schedules with different boundaries being properties 1A, 1B, 1C, 2A, 2B, 3 and 4 of Survey No. 90/2. While so, the appellant sought for permission of GHMC for putting up constructions and the GHMC did not process the application seeking permission to put up constructions on the ground that the properties mentioned in the Sale Certificate and the boundaries mentioned in the application for permission of construction are at variance with one another and such being the case, the appellant approached the learned Recovery Officer of DRT-1, Hyderabad in M.P No. 207 of 2019 for the issuance of the rectification deed stating that due to oversight some of the boundaries in the Sale Certificate namely, the western boundary was mentioned as 429 ft. instead of 444 ft. and the road on the western side has been mentioned as 120 ft. instead of 80 ft. and the said M.P No. 207 of 2019 was dismissed by the learned Recovery Officer against which an appeal was filed before the learned Presiding Officer, which also came to be dismissed.
It is seen from the records that as per the Layout Regularization Scheme (LRS)of the Greater Hyderabad Municipal Corporation the road on the western side of Survey No. 90/2 is a80 ft. road, the length of western side of survey No.90/2 is 444 ft and the width of the road on the southern side of Survey No.90/2 is 30 ft.
The survey done by the Mandal Surveyor, Serilingampally Mandal shows that the western boundary of Survey No. 90/2, Gachibowli, is a 80ft road and the said Survey map has been approved by the Dy Collector and Tahsildar, Serilingampally Mandal. Similarly, it is also seen that the length of the 4 plots 1A, 2A, 3 & 4 including the length of the southern side road, which is 30 ft wide is totally 444 ft.
Thereafter on request of the Zonal Commissioner made to the Tahsildar to furnish the location sketch for Survey No.90/2, the Tahsildar by his letter dated 22.11.2019 furnished the location sketch prepared by the Mandal Surveyor and the same shows the 80ft road on the western side and the 30 ft. road on the southern side of survey No.90/2, Gachibowli, Serilingampally Mandal. A comprehensive survey of the land in survey No.90/2 was also conducted by the Mandal Surveyor along with the Deputy Collector and Tahsildar, Serilingampally Mandal. The comprehensive survey was done in the presence of Panchas and the said Panchas had signed in the Panchanama stating that the survey was done in their presence. The said Survey report clearly indicates that the western side of Survey No. 90/2 is a 80 ft. road and that on the southern side there is a 30 ft. road.
A perusal of the plan annexed to the LRS application, which was approved after a field verification of the land by GHMC, reveals that the western boundary of Survey No.90/2 is a80 ft. wide Road, the road on southern side is a 30 ft. wide road and also that the total length of the western side of the said Survey No.is 444 feet.
Therefore, from the survey conducted by Mandal Surveyor, the comprehensive survey done in presence of Panchas, and the Layout Regularization Scheme clearly point out that the western side of survey no. 90/2 is a 80 ft wide road and not a 120 ft wide road and the length of the western side of survey No.90/2 is 444 ft as stated above and it is inclusive of the 30 ft. road which is at the southern end of survey No.90/2. Therefore, from the above documents of the Government of Telangana and the document of the Greater Hyderabad Municipal Corporation it can be concluded that the road on the western side of Survey No. 90/2 is a80 ft. road, the length of western side of survey No.90/2 is 444 ft and that the same includes the road on the southern side of Survey No.90/2 which is 30 ft. in width and such being the case this point is answered in favour of the appellant.
Point No.2.
Point No.1 is answered in favour of the appellant and it has to be concluded that the appellant is entitled to the issuance of the rectification deed, by the Learned Recovery Officer, DRT-1, Hyderabad.
Point Nos. 1 and 2 have been answered in favour of the appellant and therefore, the appeal requires to be allowed.
In the result, the appeal is allowed. The order of the Learned Presiding Officer DRT 1 Hyderabad, made in Appeal No. 5 of 2019 is hereby set aside as a consequence of which the order of the Learned Recovery Officer1, DRT1 Hyderabad made in MP No 207 of 2019 is also set aside. The appellant is directed to obtain a copy of the Draft Rectification Deed filed in this Tribunal and submit the same to the Learned. Recovery Officer, DRT 1 Hyderabad. The Learned Recovery Officer 1, DRT1, Hyderabad is directed to issue the Rectification Deed as per the copy of Draft Rectification Deed which will be obtained from this Tribunal and would be filed in DRT1 Hyderabad by the Appellant.
File be consigned to record room.
(Dictated to the Stenographer, transcribed by him, corrected, signed and pronounced by me on this the 22ndday of February, 2021).
Sd/-
(Dr. T. Ravi Shankar)
Chairperson
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