M/S AL-CAN EXPORT PVT. LTD.  [APPELLANT] Vs.

PRESTIGE H.M. POLYCONTAINERS LTD. & ORS.   [RESPONDENT(S)]

CIVIL APPEAL NO. 7254 OF 2024

(2JB, J. B. PARDIWALA and MANOJ MISRA JJ., delivered by J. B. PARDIWALA, J.)

Facts: The captioned appeals arise from the common judgment and order passed by the High Court of Judicature at Bombay dated 9.12.2015 in Writ Petition (C) No. 415 of 2011 with Writ Petition (C) No. 418 of 2011 respectively filed by the appellant herein by which the High Court rejected both the writ petitions and thereby affirmed the common order dated 18.02.2010 passed by the Additional Commissioner, Konkan Division, Mumbai setting aside the order of sale passed by the Tahsildar, Talasari dated 3.12.2008 as affirmed by the Additional Collector, Thane dated 15.01.2009 passed in favour of the appellant herein.

Issue: Whether the provisions of Order XXI Rule 90 of the Code of Civil Procedure would apply to the writ proceedings under Article 226 of the Constitution?

Arguments on behalf of counsel for appellant:

Mr. P.S. Patwalia, the learned Senior Counsel appearing for the appellant, vehemently submitted that the High Court committed an egregious error in holding that the auction proceeding conducted by the Tahsildar was a sham and much contrary to the statutory provisions of the Revenue Code more particularly Sections 193 and 194 respectively of the Revenue Code. The learned Senior Counsel submitted that a written notice of the intended sale of the suit property with the time and place thereof was affixed strictly in accordance with the conditions as stipulated under Section 193 of the Revenue Code. In this regard, our attention was drawn to the findings recorded by the High court as contained in para 37 of the impugned judgment of the High Court. The learned Senior Counsel further submitted that the original owner (respondent no. 1) on his own free will and volition had given his consent on 20.10.2008 to proceed with the auction sale of the suit property.

Arguments on behalf of counsel for respondent:

Mr. Amar Dave, the learned Senior Counsel appearing for the respondent No. 6 made the following submissions that the entire transaction on the basis of which the suit property was taken over by the appellant was nothing but absolute fraud perpetrated in collusion with each other. The entire process initiated by the Tahsildar was by supressing various critical facts from time to time from the Additional Collector who under the scheme of the Act was to approve the process of any such auction and pursuant thereto to confirm any such sale under the auction.

Held: The court disposed off the present appeal and held that, “We are of the view that even otherwise the provisions of the CPC do not apply to writ petitions under Article 226 of the Constitution of India except some of the principles enshrined therein like res judicata, delay and laches, addition of parties, matters which have not been specifically dealt with by the writ rules framed by the respective High Court.”