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2009 DIGILAW 2718 (ALL)

MOHD. HALEEM v. SUB DIVISIONAL OFFICER, AURAI

2009-07-30

DEVI PRASAD SINGH

body2009
JUDGMENT Hon’ble Devi Prasad Singh, J.—List revised. None appears for the private respondent. 2. Heard Sri A.S. Rai, learned counsel for the parties and the learned Standing Counsel and also perused record. 3. The writ petition has been preferred against the impugned order by which the Sub-Divisional Magistrate by the order dated 26.12.2005, has set aside the auction and sale of the land in question (plot No. 331) of town area Aurai Taluka Kodh, Tehsil Aurai Distt. Sant Ravidas Nagar Bhadohi. The petitioner is auction purchaser. 4. In brief, the respondent No. 3 failed to pay trade tax hence, recovery certificate was issued on 20.4.1987, 10.5.1999 and 20.6.1999. Since the respondent failed to pay tax the matter was referred to revenue authorities to recover the dues as arrears of land revenue keeping in view the provisions contained in U.P.Z.A. & L.R. Act and the Rules framed thereunder. A public auction was held on 29.10.2001. The petitioner was the highest bidder of Rs. 3,20,000/- and was allotted the land in question. The petitioner being the highest bidder, deposited 25% of the auction amount to the tune of Rs. 80,000/- in Tehsil Aurai. The rest amount was to be paid by the petitioner on 12.11.2001. Thereafter, the SDM had affirmed the sale and issued certificate (Annexure 4 to the writ petition) in pursuance of the provisions contained in Rule 285-M of the U.P.Z.A. & L.R. Rules, 1952 (in short the Rules). Thereafter, the land was also mutated in petitioner’s name under Section 34 of the Land Revenue Act. The extract of Khatauni has also been filed as Annexure 1 to the writ petition. It appears that the respondent No. 3 Ram Naresh has moved application under Rule 285-I of the Rules before the Commissioner Mirzapur for cancellation/annulment of the auction dated 29.10.2001. 5. According to Rule 285-I of the Rules, an application has to be moved within 30 days from the date of sale. The Commissioner after considering the application on merit, had dismissed the same by the order dated 27.8.2002 (Annexure 5 to the writ petition). Though the Commissioner has upheld the validity of auction but simultaneously provided that private respondent may approach the revenue authorities to ventilate his grievance. It appears that the private respondent Ram Naresh on 25.8.2004, had moved an application in pursuance of the order almost after two years. Though the Commissioner has upheld the validity of auction but simultaneously provided that private respondent may approach the revenue authorities to ventilate his grievance. It appears that the private respondent Ram Naresh on 25.8.2004, had moved an application in pursuance of the order almost after two years. It was prayed by the private respondent that the trade tax has been paid and the recovery certificate issued, has been withdrawn, hence, the sale may be cancelled. The Tahsildar has referred the matter to the SDM concerned who issued notice to the petitioner and thereafter, by the impugned order, the sale has been cancelled. While assailing the impugned order, it has been stated by the petitioner’s counsel that after statutory period, the Commissioner was not entitled to accept the application. Moreover, once the Commissioner rejected the application under Section 285-I of the Rules, then the sale attained finality and cannot be re-opened under Rule 285-H of the Rules. Submission is that even the application was moved after lapse of almost two years which seems to be violative of statutory provisions contained in the Rules. 6. While defending the impugned action learned counsel for the respondents submits that the order dated 27.8.2002 passed by the Commissioner has not been impugned by the petitioner hence, the petitioner has no right to raise objection with regard to observations of the Commissioner permitting the private respondents to approach the Tehsil authorities. 7. I have considered the arguments advanced by the parties counsel at length and gone through the record. 8. While proceeding to recover dues of arrears as land revenue, it was incumbent on the revenue authorities to follow the procedure given in the Rules with regard to sale of immovable property. Rule 285-H of the 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, may apply to the Collector to set aside sale on his depositing requisite amount in the Collector’s office. Rule 285-I empowers the Collector to entertain an application within thirty days from the date of sale. Rule 285-I empowers the Collector to entertain an application within thirty days from the date of sale. Rule 285-J provides that if the application has been made by the aggrieved parties is rejected in proceedings under Rule 285-H or 285-I, an order has to be passed confirming sale after satisfying that the purchase of land would not be in contravention of provisions under Section 154. However, in case no application is made within the specified time, then the sale may be confirmed in pursuance of power conferred by Rule 285-M of the Rules. Rule 285-L provides that whenever, the sale of any holding or other immovable property is set aside under Rule 285-M or Rule 285-L, the purchaser shall be entitled to receive back his purchase money plus an amount not exceeding five per cent of the purchase money as the Collector or the Commissioner, as the case may be, may determine. For convenience Rule 285-H, I, J, K, L and M of the Rules are reproduced as under : “285-H. (I) 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 have the sale set aside on his depositing in the Collector’s Office— (a) for payment to the purchaser, a sum equal to 5 per cent of the purchase money; and (b) for payment on account of the arrears, the amount specified in the proclamation in Z.A. Form 74 as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been paid on that account; and (c) the costs of the sale. On the making of such deposit, the Collector shall pass an order setting aside the sale : Provided that if a person applied under Rule 285-I to set aside such sale he shall not be entitled to make an application under this rule. On the making of such deposit, the Collector shall pass an order setting aside the sale : Provided that if a person applied under Rule 285-I to set aside such sale he shall not be entitled to make an application under this rule. 285-I. (i) At any time within thirty days from the date of the sale, 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 it; but no sale shall be set aside on such ground unless the applicant proves to the satisfaction of the Commissioner that he has sustained substantial injury by reason of such irregularity or mistake. (ii) ...................................... (iii) The order of the Commissioner passed under this rule shall be final. 285-J. On the expiration of thirty days from the date of the sale if no such application as is mentioned in Rule 285-H or Rule 285-I, has been made or if such application has been made and rejected by the Collector or the Commissioner, the Collector shall pass an order confirming the sale after satisfying himself that the purchase of land in question by the bidder would not be in contravention of the provisions of Section 154. Every order passed under this rule shall be final. 285-K. If no application under Rule 285-J is made within the time allowed therefor, all claims on the ground of irregularity or mistake in publishing or conducting the sale shall be barred : Provided that nothing contained in this rule shall bar the institution of a suit in the civil Court for the purpose of setting aside a sale on the ground of fraud. 285-L. Whenever the sale of any holding or other immovable property is set aside under Rule 285-H or Rule 285-I, the purchaser shall be entitled to receive back his purchase money plus an amount not exceeding five per cent of the purchase money as the Collector or the Commissioner, as the case may be, may determine. 285-L. Whenever the sale of any holding or other immovable property is set aside under Rule 285-H or Rule 285-I, the purchaser shall be entitled to receive back his purchase money plus an amount not exceeding five per cent of the purchase money as the Collector or the Commissioner, as the case may be, may determine. 285-M. (i) After a sale of holding or other immovable property under the Act has been confirmed in the manner aforesaid, the Collector shall put the person declared to be purchaser into possession of such property and shall grant him a certificate to the effect that he has purchased the property to which the certificate refers and such certificate shall be deemed to be a valid transfer of such property, but need not be registered as a conveyance except as provided by Section 89 of the Registration Act, 1908. (ii) The certificate shall state the name of the person declared at the time of sale to be the actual purchaser and any suit brought or application made in a civil or Revenue Court against the certified purchaser on the ground that the purchase was made on behalf of another person not the certified purchaser, though by agreement the name of the certified purchaser was used shall be dismissed with costs.” 9. Now, whether the impugned order passed by the SDM lacks jurisdiction or not, is question which has been cropped up for adjudication by this Court. Undoubtedly, the observations made by the Commissioner while passing the order dated 27.8.2002 have not been impugned by the petitioner hence, attained finality. However, in the present case, Rule 285-H at the face of record indicates that an application may be moved for setting aside the auction and sale within 30 days from the date of sale. In the present case instead of choosing the forum under Section 285-H the private respondent has approached under Rule 285-I. No application could have been entertained by the Collector after expiry of period of thirty days under Rule 285-H. Submission of the petitioner’s counsel is that since the order of the Commissioner has not been impugned, the private respondent has not been able to approach the Collector under Rule 285-H. In the present case the Commissioner passed order dated 27.8.2002 rejecting the application of the private respondent. The private respondent kept silent for two years and only after lapse of two years, he moved an application belatedly in pursuance of the judgment of the Commissioner. In any case, it is presumed that delay has been condoned with regard to provisions under Rule 285-H that too, may be for earlier period. Once the Commissioner decided the controversy then thirty days period shall commence from the date of judgment of the Commissioner. The Tahsildar as well as the SDM were not entitled to decide the controversy on merit after lapse of two years. They seem to have acted without taking into consideration the statutory period of limitation. 10. There is one other aspect of the matter. The sale was confirmed by the Collector/SDM. Mutation took place. No objection was filed before the Commissioner within statutory period. In such circumstances, there appears to be substantial illegality committed by the Commissioner while accepting and passing the order on the application moved by the respondent No. 3. In view of the above the Deputy Collector Aurai, seems to have acted beyond jurisdiction while passing order dated 26.12.2006. While deciding identical controversy, I had dealt with procedure provided in the Act and Rules, in Writ Petition No. 5160 (MS) of 2005 : M/s. Swadeshi Polytex Limited v. Board of Revenue, U.P. and others, which has been affirmed by Hon’ble Supreme Court in M/s. Swadeshi Polytex Limited v. Board of Revenue, U.P. and others, 2006(3) ADJ 224 : 2006(2) ESC 1343 . Any auction or sale done in derogation of Rules, shall be nullity in law and may be set aside by the Courts. 11. In view of the above, the impugned order seems to be not sustainable. The writ petition is liable to be allowed. However, allowing the writ petition does not mean that the private respondent has got no alternative remedy. In case the statutory provisions have not been followed or the land in question has been auctioned for meagre amount in derogation of Rules, then it shall be open to the private respondent to approach the Civil Court for appropriate relief. 12. Subject to above observations and directions, the writ petition is allowed. In case the statutory provisions have not been followed or the land in question has been auctioned for meagre amount in derogation of Rules, then it shall be open to the private respondent to approach the Civil Court for appropriate relief. 12. Subject to above observations and directions, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 26.12.2005 (Annexure-5 to the writ petition) passed by the Sub-Divisional Officer, Aurai, District Sant Ravidas Nagar Bhadohi, with consequential benefits with liberty to the private respondent No. 3 to file a regular suit in case he is advised to do so. There shall be no order as to costs. ————