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2004 DIGILAW 1405 (RAJ)

State of Rajasthan v. Mahendra Kumar

2004-09-27

DALIP SINGH, PRASAD

body2004
Judgment Dalip Singh, J.-These two appeals one by the State of Rajasthan and another by Basant Kumar (auction purchaser) have been filed against the Judgment of the learned Single Judge dated 11.09.2000 whereby the writ petition filed by the petitioner-respondent Mahendra Kumar was allowed. 2. The facts giving rise to these appeals are that respondent No. 6 Dau Dayal was a lessee of the mining lease from the State of Rajasthan. A demand for dead-rent and royalty was raised against the said Dau Dayal and the same not being paid and discharged, recovery proceedings were initiated against the said Dau Dayal respondent No. 6 herein. 3. Respondent No. 6 Dau Dayal, raised a dispute regarding the demand of dead-rent and royalty by means of filing a writ petition being S.B. Civil Writ Petition No. 1197 of 1983 before this Court. Meanwhile, the recovery proceedings against the original demand of dead-rent and royalty were initiated. An objection came to be filed by the petitioner Mahendra Kumar that the property in dispute i.e. housesituate in the city of Bikaner was jointly owned by respondent No. 6 Dau Dayal, Hari Kishan Mohta and Shiv Kishan Mohta with equal shares of 1/3rd. The petitioner Mahendra Kumar is son of Hari Kishan and respondents No. 2 to 5 are sons of Shiv Kishan. The objection was that the entire house cannot be put to sale by means of auction for realizing the dues against Dau Dayal and sale should be subjected to 1/3rd share belonging to Dau Dayal alone. 4. It is alleged that on 14.04.1972, the Sub-Divisional Officer, Bikaner ordered that only the portion of 1/3rd belonging to Dau Dayal be put to auction. It seems that the matter remained pending for one reason or other and subsequently it was placed before the Assistant Mining Engineer (Recovery), Bikaner who on 20.03.1987 ordered that the share of Dau Dayal in the property in dispute shall be transferred to the Government. On 18.09.1990, auction notice was issued. However, it is alleged that it was not mentioned that only 1/3rd share belonging to Dau Dayal was to be put to auction. On 210.1990, auction of the entire house was held and highest bid was received for Rs. 2,01,000/-given by the auction purchaser Basant Kumar Daga appellant in Appeal No. 1117 of 2000. 5. However, it is alleged that it was not mentioned that only 1/3rd share belonging to Dau Dayal was to be put to auction. On 210.1990, auction of the entire house was held and highest bid was received for Rs. 2,01,000/-given by the auction purchaser Basant Kumar Daga appellant in Appeal No. 1117 of 2000. 5. It is alleged by the petitioner Mahendra Kumar in his writ petition that the petitioner raised objection against the sale of the entire house before the Assistant Mining Engineer (Recovery) on 011.1990. The Assistant Mining Engineer by his order dated 15.01.1991 cancelled the auction and ordered for sale afresh. The said fresh sale was notified for being held on 26.03.1991. 6. In the meanwhile, being aggrieved by the order dated 15.01.1991, the auction purchaser Basant Kumar filed a revision petition before the Board of Revenue for Rajasthan at Ajmer and the Board of Revenue stayed the operation of the order passed by the Assistant Mining Engineer dated 15.01.1991. It is also submitted that the revision petition preferred by the auction purchaser was allowed by the Board of Revenue on 03.09.1993 and the case was remanded back to the Assistant Mining Engineer for decision afresh in accordance with law. 7. Before the petitioner could challenge the order dated 03.09.1993 of the Board of Revenue passed in the revision filed by the auction purchaser, the writ petition being S.B. Civil Writ Petition No. 1197 of 1983 filed by Dau Dayal challenging the demand itself , was allowed by this Court vide its Judgment dated 011.1993. Consequent upon the decision dated 011.1993 of the High Court allowing the writ petition, representations were filed by the petitioners on 112.1993 and subsequently on 29.01.1994, 10.02.1994 and 16.02.1994 bringing to the notice of the Assistant Mining Engineer, the decision passed in S.B. Civil Writ Petition No. 1197/93 dated 011.1993 by which the demand against Dau Dayal for the dead-rent and royalty was quashed and set aside with a direction to re-determine the liability against him. However, in spite of the aforesaid representations having been filed bringing to the notice of the Assistant Mining Engineer, the decision of this Court dated 011.1993 setting aside the demand raised against Dau Dayal for the recovery of which the auction property in dispute was held on 210.1990 in which the appellant Basant Kumar had given the highest bid, the sale in favour of Basant Kumar was confirmed on 212.1993 ignoring the representation and the Judgment of the High Court dated 011.1993. It appears that the State of Rajasthan filed an appeal before the Division Bench being D.B. Civil Special Appeal No. 657 of 1996 against the Judgment dated 011.1993 passed by the learned Single Judge of this Court allowing the writ petition of Dau Dayal. The said appeal of the State of Rajasthan came to be dismissed by Judgment dated 05.03.1997. Consequently, the Judgment dated 011.1993 and the directions given therein by this Court setting aside the demand against Dau Dayal were confirmed and became final. 8. The petitioner filed this writ petition, inter alia, seeking a direction that consequent to the decision of this Court dated 011.1993 and all proceedings effected for recovery of the demand, be declared illegal and further that the decision of the Board of Revenue dated 03.09.1993 allowing the revision of the auction purchaser be set aside. It was also prayed that the respondents be restrained from interfering with the possession of the property and further in case the possession is taken by the respondents during pendency of the writ petition, the same may be restored to the petitioner. 9. During pendency of the writ petition and consequent upon the Judgment passed by this Court on 011.1993 allowing the writ petition filed by Dau Dayal, a fresh demand against Dau Dayal for the original period was revised by the appellant-State for a sum of Rs. 96,448/-on 13.08.1998. It has also come on record that the State of Rajasthan issued an Amnesty Scheme under which on the deposit of the principal amount within the frame work of the Scheme, interest against the outstanding demand was to be waived. Dau Dayal applied for the benefit of the said Scheme, which was allowed to him and the amount of Rs. It has also come on record that the State of Rajasthan issued an Amnesty Scheme under which on the deposit of the principal amount within the frame work of the Scheme, interest against the outstanding demand was to be waived. Dau Dayal applied for the benefit of the said Scheme, which was allowed to him and the amount of Rs. 96,448/-was deposited and thereafter since 1998, there are no dues of the State outstanding against the demand against Dau Dayal and the liability towards the State stands discharged. 10. The learned Single Judge in his detailed and reasoned Judgment while allowing the writ petition has held that consequent to the Judgment dated 011.1993, there was no demand in existence in furtherance of which the proceedings for auction could have been continued and that he had no option but to refuse the confirmation of sale and release the property from execution. We are in agreement with the learned Single Judge that consequent upon the Judgment dated 011.1993 passed in the writ petition filed by Dau Dayal, there was no question of continuing with the recovery proceedings by confirming the sale on 212.1993 despite the fact of the Judgment dated 011.1993 having been brought to the notice of the respondents. The demand itself having been set aside, the debt for which the recovery proceedings were being continued, had ceased to exist and, therefore, the proceedings by the Recovery Officer were totally without jurisdiction and against non-existent demand. It had been held by this Court in its Judgment dated 011.1993 Annx.1 to the writ petition in the following terms:- “Therefore, the petition is allowed. The respondents are restrained from recovering the amount claimed as due against the petitioner in respect of Block No. 3 in Part ‘A’ in mica mineral track at Bhilwara as arrears of dead-rent or on other accounts in pursuance of Ex.8 dated August 4, 1965. However, it will be open to competent authority to re-determine the amount that is payable by the petitioner to the Department in accordance with law, keeping in view the observations made above, after giving an opportunity of hearing to the petitioner. No order as to costs of this writ petition.” 11. It is clear that this Court had restrained the State (appellant) from recovering the amount against the demand dated 04.08.1965 (Annx.8) with a further direction to the State to re-determine the amount payable. No order as to costs of this writ petition.” 11. It is clear that this Court had restrained the State (appellant) from recovering the amount against the demand dated 04.08.1965 (Annx.8) with a further direction to the State to re-determine the amount payable. There was non-existent demand for which the auction was held on 210.1990 and the demand dated 04.08.1965 having been set aside, consequent recovery proceedings automatically stood annulled. Thus, the State authorities could not have confirmed the sale after the Judgment dated 011.1993 on 212.1993, which had been brought to their notice on 112.1993 nor could the Recovery Officer pass an order for the possession to be given to the appellant Basant Kumar, auction purchaser. We are in agreement with the learned Single Judge that in these facts and circumstances that the provisions of Sections 246 and 247 of the Rajasthan Land Revenue Act have no application as in the instant case, there was no subsisting and determined amount of debt for the discharge or realization of which the auction was to be held of the property. On the date of confirmation of the sale i.e., 212.1993 there was no existing debt in view of the Judgment dated 011.1993. The learned Single Judge has, therefore, recorded that this fact that “no demand was existing as on the date the sale was confirmed in completion of execution proceedings” is not disputed by the learned Additional Advocate General appearing for the State. We may state that in view of what we have stated above in the facts of this case, there being no existing demand, the sale could not have been confirmed after the Judgment of this Court dated 011.1993 setting aside the demand dated 04.08.1965 for which the auction was held by sale of the property in dispute. The State authorities, therefore, rightly issued the order for release of the property in dispute on 25.09.1998 (Annx. A) as the amount re-determined in pursuance of the directions given in the Judgment dated 011.1993 had been paid to the State. 12. The demand itself was revised by the State and fresh demand was issued on 13.08.1998 for a sum of Rs. 96,448/-against Dau Dayal and the amount was paid by Dau Dayal and received by the State. A) as the amount re-determined in pursuance of the directions given in the Judgment dated 011.1993 had been paid to the State. 12. The demand itself was revised by the State and fresh demand was issued on 13.08.1998 for a sum of Rs. 96,448/-against Dau Dayal and the amount was paid by Dau Dayal and received by the State. The learned Single Judge has rightly directed that the auction purchaser Basant Kumar who is also the appellant before us would be entitled to refund of the entire amount deposited by him with 12% interest. The interest of the appellant Basant Kumar has been adequately protected and relief has been granted by the learned Single Judge to the auction purchaser as well, which we find just and equitable. We do not find ourselves to be persuaded by the contention of the appellant Basant Kumar that even though by the Judgment dated 011.1993, the original demand dated 04.08.1965 had been set aside but as some amount even though not ascertained or yet to be ascertained was due, the sale ought not to have been set aside. As has been held by us, the auction held for a non-existent demand cannot be sustained in the eye of law. When the State re-determined the demand on 13.08.1998, the same was duly paid and the original demand dated 04.08.1965 having been set aside as a necessary implication, subsequent steps for its realization shall also have to go. Further the sale of the share of the petitioner apart from 1/3rd share of Dau Dayal, was held contrary to law and on that ground also, the sale deserves to be set aside. Consequently, the appeal filed by Basant Kumar auction purchaser (D.B. Civil Special Appeal (Writ) No. 1117/2000) is without merit and is liable to be dismissed. 13. The learned Single Judge had taken due care to protect the interest of the petitioner, who was objector and who has been objecting to the sale of the entire property for realization of the demand against Dau Dayal, who had only 1/3rd share in the property and further that even the original demand for realization of which the auction took place had, in fact, been set aside vide Judgment of this Court dated 011.1993. The auction was set aside by the learned Single Judge and relief was granted to the petitioner. 14. The auction was set aside by the learned Single Judge and relief was granted to the petitioner. 14. The interest of the appellant-State whose dues were to be realized by way of auction have been amply protected in as much as the State, as a result of the Judgment passed by this Court on 011.1993, revised its demand to Rs. 96,448/-in all and the State had itself waived the interest under its amnesty Scheme and the said outstanding demand having been deposited by the assessee respondent No. 6 in the writ petition Dau Dayal, in August, 1998, the interest of the State was taken due care of . In view of this fact, there is no merit in the contentions of the State in its appeal that the writ petition filed was belated. The State itself gave amnesty by waiving interest and as soon as the demand was revised on 13.08.1998, the same was duly paid and that the State has itself passed an order Annx. ‘A’ on 25.09.1998 for release of the auctioned property. More-over, the Additional Advocate General appearing for the State agreed as recorded by the learned Single Judge at pare 8 of the Judgment that consequent upon the Judgment dated 011.1993 passed by the High Court setting aside the demand dated 04.08.1965 “no demand was existing as on date, the sale was confirmed”. Consequently, the appeal by the State too is devoid of merit. Thus, all the parties have been the beneficiary of the proceedings, the petitioner has got the sale set aside, the State has realized its dues in full as determined by it on 13.08.1998 and the auction purchaser has been compensated with interest @ 12% per annum on the amount deposited. 15. In this view of the matter, there is no reason to interfere with the Judgment of the learned Single Judge in appeal filed by the State and also the appeal filed by the auction purchaser Basant Kumar. 16. Consequently, both the appeals are hereby dismissed. There shall be no order as to costs.