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2001 DIGILAW 1125 (ALL)

DAUJI PATHAK v. U. P. FINANCIAL CORPORATION

2001-12-05

G.P.MATHUR, R.P.MISHRA

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G. P. MATHUR, J. ( 1 ) THIS petition under Article 226 of the Constitution of India has been filed praying that proceedings for attachment dated 5. 9. 2001 and the auction held on 20. 9. 2001 be quashed and a writ of mandamus be issued directing respondent No. 2 not to confirm the auction proceedings conducted on 29. 1. 2001. A further prayer has been made that a writ of mandamus be issued to the respondents to show ho w the amount of Rs. one crore twelve lacs has been arrived at and how the property worth Rs. 24 lacs was sold for a sum of Rs. 8 lacs. ( 2 ) WE have heard Mr. Puneet Chaturvedi and Mr. B. B. Paul for the petitioner, Mr. Atiq Ahmad khan for respondent No. 1, learned Standing Counsel for respondent Nos. 2 and 3 and have perused the record. ( 3 ) IT is averred in the writ petition that the petitioner is sole proprietor of M/s. Sudha Dychani industries, dated in G-15 UPSIDC Industrial area, Site B, Mathura which was granted a loan of rs. 15. 87 lacs by the U. P. Financial Corporation (for short UPFC) between 1987 and 1989. The petitioner could not repay the loan according to terms of the agreement. It is averred in paragraph 8 of the writ petition that the unit of the petitioner was sealed in December, 1991, but subsequently it was released on payment of Rs. 1. 50 lacs. The UPSC again took possession of the unit in December, 1992. The petitioner requested for regaining the possession of the unit and in that connection, a one-time settlement was arrived at on 1. 9. 1994, copy of which has been filed as Annexure-1 to the writ petition. Under the terms of the settlement, the petitioner had to pay Rs. 20 lacs. The first deposit of Rs. 6 lacs was to be made by September, 1994 and the last deposit of Rs. 7 lacs by July, 1995. The petitioner did not comply with the terms of this settlement, and did not deposit the amount. It appears that the petitioner again made aproposal for one-time settlement which was accepted by the UPFC and it was communicated by a letter dated 17. 9. 1996 (Annexure-2 to the writ petition ). Under this settlement, the petitioner was required to pay Rs. It appears that the petitioner again made aproposal for one-time settlement which was accepted by the UPFC and it was communicated by a letter dated 17. 9. 1996 (Annexure-2 to the writ petition ). Under this settlement, the petitioner was required to pay Rs. 4 lacs by September, 1996 and the last instalment of Rs. 4 lacs by September, 1997. Annexure-6 to the Supplementary affidavit shows that the petitioner gave a cheque of Rs. 4 lacs but the same was dishonoured. The UPFC thereafter sent a letter to the petitioner on 9. 12. 1996 to deposit Rs. 8 lacs by December, 1996. It was also mentioned in the same letter that if the amount was not deposited the one-time settlement approved in September, 1996 shall be cancelled. It is not in dispute that the petitioner did not deposit the amount. It is also not in dispute that there are outstanding dues against the petitioner and the same are being recovered now under the provisions of U. P. Public Moneys (Recovery of Dues) Act. It is averred in paragraphs 13 and 14 of the writ petition that the ancestral properties of the petitioner situated at 392, Gujrana Gali, Mathura and 825, Chaubachacha Mohalla, Mathura were attached and were auctioned on 20. 9. 2001. The present writ petition has been filed challenging the attachment and auction of the aforesaid properties of the petitioner. ( 4 ) MR. Chaturvedi has contended that the attachment and auction of the property of the petitioner is wholly illegal as the same was done without any notice to him. He has further submitted that the pro visions of U. P. Zamindari Abolition and Land Reforms Act, 1950 and the Rules framed thereunder have not been followed, and therefore the attachment arid auction sale of the properties is illegal. ( 5 ) MR. Atiq Ahmad Khan, learned Counsel for the respondent No. 1 has submitted that the petitioner has already filed applications before the Commissioner of the Division and also before the Collector for setting aside the auction sale of the properties and since the petitioner ispursuing the aforesaid remedies, thepresent writ petition is not maintainable. In reply Mr. Chaturvedi has submitted that the existence of alternative remedy will not be bar for this Court to issue an appropriate writ under Article 226 of the Constitution of India. In reply Mr. Chaturvedi has submitted that the existence of alternative remedy will not be bar for this Court to issue an appropriate writ under Article 226 of the Constitution of India. In support of this submission, reliance is placed upon Whirlpool Corporation v. Registrar of Trade Mark, Mumbai and Others, VIII (1998) SLT 380= 1998 (8) SCC 1 . ( 6 ) WE have given ourcareful consideration to the submissions made by learned Counsel for the parties. It is averred in paragraph 16 of the writ petition that the petitioner has moved an application before the Commissioner, Agra Division. In paragraph 17 of the writ petition it is averred that the petitioner has also moved an application before the District Magistrate, Mathura for setting aside the sale. Copies of these applications have been filed as Anhexures 4 and 5 to the writ petition. ( 7 ) U. P. Public Moneys (Recovery of Dues) Act, 1972 provides that dues of a Corporation can be recovered as if it were arrears of land revenue. The definition of the word corporation under section 2 (a) of the Act shows that itincludes the U. P. Financial Corporation established under the State Financial Corporation Act, 1951. Therefore, there can be no dispute that the dues of u. P. Financial Corporation can be recovered as arrears of land revenue under Section 3 (1) of the act. Section 279 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (for short U. P. Z. A. and L. R. Act) provides for recovery of arrears of land revenue and Clauses (a) to (g) of sub-section (1) thereof provide different modes for recovery of the amount. Clause (a) provides for serving a writ of demand or citation to appear on any defaulter arid Clause (f) provides for attachment and sale of other immovable property of defaulter. Therefore, in view of Section 279 (1) (f) any immovable property of a defaulter can be attached and sold in proceedings for recovery of the amount. Rule 285-H of theu. Clause (a) provides for serving a writ of demand or citation to appear on any defaulter arid Clause (f) provides for attachment and sale of other immovable property of defaulter. Therefore, in view of Section 279 (1) (f) any immovable property of a defaulter can be attached and sold in proceedings for recovery of the amount. Rule 285-H of theu. P. Z. A. and L. R. Rules provides that any person whose holding or other immovable property has been sold under the Act may, at any time within thirty days from the date of sale, apply to the Collector to have the sale set aside on his depositing in the Collectors office the amount enumerated in Clauses (1) to (3) of the Rules. On making of such deposit, the Collector shall pass an order setting aside the sale. Rule 285-I provides that at any time within 30 days from the date of the sale, an application may be made to the Commissioner to set aside the sale on the ground of some material irregularity or mistake in publishing or conducting the sale. These provisions show that both Collector and Commissioner have got power to set aside the sale. The allegations made in the writ petition show that the petitioner is already pursuing his remedies both before the Collector and the Commissioner of the Division for setting aside the sale. Since the petitioner is already pursuing the remedies provided under the Act for setting aside the sale, we are not inclined to entertain the writ petition at this stage. ( 8 ) IT is true that existence of an alternative remedy is not an absolute bar for entertaining a writ petition under Article 226 of the Constitution of India. There is no constitutional or statutory prohibition on the Court to entertain a writ petition even if an alternative remedy is available. But normally this Court would not exercise discretion in favour of an aggrieved party if he has an alternative remedy available under the Statute. In the present case, the petitioner is already pursuing his alternative remedy by filing applications both before Collector and also before the commissioner. The grounds on which the attachment and sale of the properties of the petitioner have been assailed here require investigation into questions of fact. These matters can be better examined by the Collector and also by the Commissioner. The grounds on which the attachment and sale of the properties of the petitioner have been assailed here require investigation into questions of fact. These matters can be better examined by the Collector and also by the Commissioner. They can easily examine the record and decided the various issues of fact involved in the matter. Even after the decision by the commissioner, the petitioner will have a right to challenge the same by filing a revision before the Board of Revenue. The decision of the Board of Revenue can be challenged by filing a writ petition under Articles 226/227 of the Constitution. ( 9 ) IN the facts and circumstances of the case, we do not consider it proper and feasible to embark upon a parallel inquiry by directly entertaining the writ petition under Article 226 of the constitution, wherein attachment and sale of the property has been assailed. ( 10 ) FOR the reason mentioned above, the writ petition is dismissed summarily at the admission stage. .