Yamin v. Commissioner — 1992 DIGILAW 1458 (ALL)

JUDGMENT M.L. Mhat, J. - Counter affidavit and sejoinder affidavit have already been filed in this petition. Therefore, at the request of the learned Counsel for the parties I proceed to decide this petition finally. 2. The agricultural land of the Respondent No. 2 was attached and put on auction on 23-7-1990 by the Tehsilpar, Lashkar district Hardwar as a result of failure of Respondent No. 2 to repay the loan amount, which he had borrowed from the Respondent No. 3. The highest bid of Rs. 70,200/- was offered by the Petitioners, which was accepted. Out of the bid amount Rs. 18,000/- i.e. one-fourth of the bid amount was deposited by the Petitioners in accordance with Rule 285-D of the U.P.Z.A & L.R. Rules, hereinafter referred to as 'the Rules'. The Petitioner thereafter is said to have deposited the balance of purchase money in terms of Rule 285-E of the rules. The Respondent No. 2, according to the Petitioners, did not deposit the amount within the time specified under the rules. The Respondent No. 2 is said to have made an application before the Sub-Divisional Officer on 19-8-1990. The application was not found tenable and the auction was confirmed on 15-12-1990. The Respondent No. 2 being aggrieved by the auction sale and its confirmation is said to have filed an appeal, which came to be dismissed by the Additional Commissioner, Meerut Division, on 5-2-91 as not maintainable. The Respondent No. 2 is said to have filed objections also before the Respondent no 1 on 24-1-1991 under Rule 285-1 of the rules. These objections are said to have been filed beyond time but the the Respondent No. 1 condoned the delay in filing the objections and set aside the auction sale dated 23-7-1990 as also the confirmation of the said sale dated 15-12-1990 by his order dated 12-11-1991. 3. The Petitioners further State that they have deposited the entire sum of auction money as also the amount of Rs. 8000/- for registration and stamps. The order of the Respondent No. 1 was bad and illegal, therefore, they have a right to get the land, which they have purchased at the auction sale. The said sale cannot be annulled or set aside by the Respondent No. 1. The Respondent No. 2 is said to have not raised any objection with regard to non-compliance of Rule 285-C or 28S-H of the rules. The said sale cannot be annulled or set aside by the Respondent No. 1. The Respondent No. 2 is said to have not raised any objection with regard to non-compliance of Rule 285-C or 28S-H of the rules. On the basis of the aforesaid allegations the Petitioners seek a writ of certiorari quashing the judgment and order of the Respondent No. 1 dated 12-11-1991 and by a writ of mandamus a direction is sought to the Collector, Hardwar to confirm the auction sale and issue sale certificate in favour of the Petitioners. 4. In his counter affidavit the Respondent No. 2 has stated that he was not given any notice for deposit of any money. He was ready and willing to deposit the same at all times. The attachment was without authority of law. The Collection Amin is said to have colluded with the Petitioners and the property of the Respondent No. 2 worth more three lacs of rupees was auctioned for Rs. 70000/- only. The Sub-Divisional Officer was not competent to confirm the sale. The sale was to be confirmed by the Collector. When the Respondent No. 2 came to know about the auction proceedings and its confirmation he moved an application stating therein that a major part of the amount had alread been deposited within the prescribed time and showed his willingness to deposit the balance amount, which he was not allowed to deposit on one pretext or to other. On 19-8-1990 the Sub-Divisional Officer is said to have directed the Respondent No. 2 to deposit the amount in instalments. The same officer is said to have confirmed the sale which was illegal and without jurisdiction. The responpent No. 2 is said to have deposited the entire amount due under the orders of the Sub-Divisional Officer, therefore, the confirmation of sale was illegal. The Respondent No. 2 is said to have deposited Rs. 10,000/- in excess because three was an exemption to the extension of Rs. 10,000- on agricultural loans. The objection filed by the Respondent No. 2 was not belated and the sole was confirmed on 15-12-1990. The objection was filed on 24-1-1991 before the Respondent No. 1. The delay of few days was explained and a medical certificate was also filed. The Respondent No. 1, condoned the delay and allowed the objection. 10,000- on agricultural loans. The objection filed by the Respondent No. 2 was not belated and the sole was confirmed on 15-12-1990. The objection was filed on 24-1-1991 before the Respondent No. 1. The delay of few days was explained and a medical certificate was also filed. The Respondent No. 1, condoned the delay and allowed the objection. The Petitioner are entitled to take back the amount deposited by them as cost of the land. 5. The Petitioners have filed rejoinder affidavit also. The assertions made by the Respondent No. 2 in his counter affidavit are denied and it is stated that the sale and its confirmation had take place in accordance with law, therefore, the impugned order passed by the Respondent No. 1 is liable to be set aside. 6. I have heard the learned Counsel for the parties and considered the material placed on record. 7. A preliminary objection was raised by Mr. Mandhyan that the writ petition was not maintainable because the Petitioners could file a revision before a forum prescribed by law. Reliance is placed on a Full Bench authority of the Lucknow Bench of this Court, Ram Swaroop v. Board of Revenue 1990 RD 291. It is held in the said authority that the Commissioner while deciding the objection under rule 28S-I of the rules will be a Court and the proceedings taken before him in consequence of objections filed will be deemed to be judicial proceedings. If an other is passed by the Commissioner, that will be amenable to the revisional jurisdiction of the Board of Revenue. 8. I have considered the preliminary objection. The order of the Commissioner passed under Rule 285-1 of the rules is final. It is made amendale to the revisional jurisdiction of the Board of Revenue u/s 333 of the U.P.Z. A & L.R. Act. The revisional remedy is also an extraordinary remedy and it cannot interfere with the findings of fact. The remedy of revision will not stand in the way of the Petitioners to inxoke the jurisdiction of this Court under Article 226 of the Constitution of India to challengs the orders of the Respondent No. 1 passed by him under Rule 285-1 of the rules. Thisobjection could be raised at the thresh hold. The remedy of revision will not stand in the way of the Petitioners to inxoke the jurisdiction of this Court under Article 226 of the Constitution of India to challengs the orders of the Respondent No. 1 passed by him under Rule 285-1 of the rules. Thisobjection could be raised at the thresh hold. Now that the parties have filed pleadings and the case has been argued also, therefore, it will not be proper to refuse to hear the writ petition on the ground that the Petitioners had an alternative remedy of filing a revision. The alternative remedy available to the Petitioners is not appropriate in the facts and cirumstances of this case because the revisional Court is ordained by the provisions of the Act to consider the limited questions and not to go into the factual aspect of any case. The preliminary objection raised by Mr. Mandhyan is, therefore, over ruled and the writ pntition is considered on merits. 9. The application of the Respondent No. 2 before the Commissioner was not vithin 32 days from the date of sale but the Commissioner seems to have condoned the delay in the facts of the case. The Respondent No. 2 was permitted by the Sub-Divisional Officer to deposit the amount and have the sale set aside. This permission was granted by the Sub-Divisional Officer on 19-8-1990. The same Sub-Divisional Officer confirmed the saleon 15-12-1990. The Commissioner permittied the Respondent No. 2 to deposit the balance amount and thereaffar set aside the sale. The Commissioner seams to have acted in fairnass, inasmuch as the authority of the Sub-Divisional Officer to conduct the sale or to perform any act with regard to the confirmation of sale was doubtful. The sale of the land of Respondent No. 2 was to be made either by the Collector in person or by an Assistant Collector, specially appointed by him in this behalf. The 'Collector' is defined in Section 3 of the Act. which expression includes an Assistant Collector first class empowered by the State Government by a notification in the Gazette to discharge all or any of the functions of the Collector under the Act. The Petitioners have not stated nor is there any material on record to infer that the Sub-Divisional Officer was empowered by the State Government by a notification to discharge all or any of the functions of the Collector. The Petitioners have not stated nor is there any material on record to infer that the Sub-Divisional Officer was empowered by the State Government by a notification to discharge all or any of the functions of the Collector. There is nothing on record to show that the Sub-Divisional Officer was specially appointed by the Collector for conduct of the sale. So an Assistant Collector, who conducts the sale, must have the following two qualifications ; (1) He must be empowered by the State Government by a notification in the Gazette to discharge all or any of the functions of the Collector; (ii) He must be specially appointed by the Collector to conduct a sale under the rules. 10. Before the Sub-Divisional Officer exercises Powers to conduct a sale, it is to be shown that the aforesaid two qualifications are possessed by the Sub-Divisional Officer. 11. The Respondent No. 1 seems to have done substantial justice. Ha has recovereed the entire amount, which was payable to the Respondent No. 3, from the Respondent No. 2. He has set aside the sale in exercise of his powers under Rule 285-1 of the rules on the ground that the Respondent No. 2 has sustained substantial injury by reason of material irregularity in the conduct of sale. The material irregularity seems to be that the Sub-Divisional Officer had no authority to conduct the sale. The Respondent No. 1 could condone the delay in filing the objection to the sale. 12. The Respondent No. 2 seems to have applied within time to the Sub-Divional Officer to have the sale set aside. He was permitted to deposit the sale price in instalments and after passing this order the Sub-Divisional Officer confirmed the sale, Therefore, the Respondent No. 2 seems to have been pushed to wall and he had no remedy except to approach the Commissioner under Rule 28S-1 of the rules. The order of the Respondents No. 1 has secured the ends of justice. It has caused some inconvenience to the Petitioners, which could be compensated. Mr. Mandhyan has submitted that the Petitioners could claim purchase money plus an amount of 5% of the purchase money, which will compensate the invonvenince caused to the Petitioners. The amount of 5% inaddition to the purchase money can be paid to the Petitioners under Rule 28S-L of the rules. Mr. Mr. Mandhyan has submitted that the Petitioners could claim purchase money plus an amount of 5% of the purchase money, which will compensate the invonvenince caused to the Petitioners. The amount of 5% inaddition to the purchase money can be paid to the Petitioners under Rule 28S-L of the rules. Mr. Mandhyan is reddy to pay 5% of the purchase money to the Petitioners. 13. In my opinion, the offer made by Mr. Mandhyan will meet the end of justice and the Petitioners will be compensated for a little of inconvenience which they have suffered on account of having participated in auction sale and having deposited the sale price. They are entitled to get their amount back plus 5% of the purchase monay, which is to be deposited by the Respondent No. 2 with the authorities. 14. For the reasons stated above this writ petition fails and is accordingly dismissed. However, the Petitioners shall be entitled to get 5% in addition to the purchase money from the Respondent No. 2which the Respondent No.2 shall deposit before the Collector within one month and on its deposit the 5% amount in addition to the purchase money shall be paid to the Petitioners as compensation for the little inconvenience they have suffered in the process.