JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Mr Anshu Chodhary for the petitioner, learned Standing Counsel, representing respondent Nos. 1 and 2, and Mr Diwakar Rai Sharma, representing respondent No. 4. None appeared for respondent No. 3, though the case has been taken up in the revised list. 2. Writ petition is directed against the order impugned dated 5.11.1986 (Annexure - B) passed by respondent No. 2, SDM/Tehsildar, Sikandara Rau, Aligarh, and the order dated 5.11.1986 passed by respondent No. 1, the Commissioner, Agra Division, Agra. 3. The respondent No. 2 has auctioned the attached property of the petitioner, at plot Nos. 38006 and 380-kha and 450, total area 25- 12-15. on 13.3.1986, which has been confirmed by respondent No. 2 on 9.6.1986. The petitioner filed an appeal/application before the Commissioner for setting aside the auction which has been rejected by the impugned order dated 5.11.1986 passed by respondent No. 1. 4. Learned counsel for the petitioner has challenged the impugned auction on the ground that the same was in violation of Rule 285-A, 285-D, 285-E and 285-J of the U.P. Zamindari Abolition and Land Reforms Rules, read with section 284 of the U.P. Zamindari Abolition and Land Reforms Act. 5. The respondents have filed counter-affidavit. 6. In the counter-affidavit filed by respondent No. 4, who is auction-purchaser, it is stated that after munadi by beat and drums a date of auction was fixed on 13.3.1986. Land in dispute of the petitioner was auctioned in presence of Jwala Singh, gram pradhan and other villagers. Respondent No. 4 was the highest bidder for Rs. 16,000/-, out of which he deposited Rs. 4,000/- at the spot. A report was submitted by Naib Tehsildar on 9.6.1986, recommending for confirmation to SDO, Sikandara Rao, Aligarh. Since the petitioner neither deposited the amount sought to be recovered nor filed any objection against the aforesaid auction; though a notice was issued to the petitioner and served personally by the official respondents. It is stated that the notice was served on 30.4.1986. The petitioner instead filed an appeal before the Commissioner on 8.7.1986, which was barred by limitation and has rightly been rejected by the Commissioner. The SDO, Sikandra Rao, had already issued a sale certificate in favour of respondent No. 4 on 25th June, 1986. 7. It is stated that the notice was served on 30.4.1986. The petitioner instead filed an appeal before the Commissioner on 8.7.1986, which was barred by limitation and has rightly been rejected by the Commissioner. The SDO, Sikandra Rao, had already issued a sale certificate in favour of respondent No. 4 on 25th June, 1986. 7. The petitioner has filed a rejoinder affidavit, in reply to the counter-affidavit filed on behalf of respondent No. 4, wherein the case in the writ petition has been reiterated. However, he has further said in paragraph 4 of the rejoinder-affidavit that even warrant of attachment was issued by a revenue clerk, and not by the Collector, as is evident from Annexure -1 to the writ petition. Therefore, even the attachment or sale proclamation was illegal. 8. There is one more fact in order to complete the narration of facts, that the balance amount of the auction-money was deposited by respondent No. 4 on 31.3.1986. 9. A short question up for consideration is whether the auction proceedings in respect to the land in question have been held in accordance with the procedure prescribed in the statute or not. 10. Section 279 of U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as ‘1950 Act’) lays down various processes following whereto recovery of an amount, recoverable as arrears of land revenue, can be made. Sub-sections 1(d), (e) and (f) of Section 279 provides that the amount can be recovered: (d) by attachment of the holding in respect of which the arrear is due; (e) by lease or sale of the holding in respect of which the arrear is due; (f) by attachment and sale of other immovable property of the defaulter. 11. The procedure for attachment, lease and sale of holding, against which an arrears is due and other property of the defaulter is provided in Sections 284 and 286 of 1950 Act read with U.P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as “1952 Rules”) and Rules 281 to 286 deals therewith. 12. Rule 281(2) of 1952 Rules provides that process for sale of holding under Section 284 of 1950 Act and of other immovable property under Section 286 of 1950 Act shall be issued by Collector. 12. Rule 281(2) of 1952 Rules provides that process for sale of holding under Section 284 of 1950 Act and of other immovable property under Section 286 of 1950 Act shall be issued by Collector. In respect to the procedure of sale, Rules 285-A, 285-D, 285-E, 285-G, 285-H and 285-I provides as under: “285-A. Every sale under Sections 284 and 286 shall be made either by the Collector in person or by an Assistant Collector specially appointed by him in this behalf. No such sale shall take place on a Sunday or other gazetted holiday or until after the expiration of at least thirty days from the date on which the proclamation under Rule 282 was issued. 285-D. The person declared to be the purchaser shall be required to deposit immediately twenty-five per cent of the amount of this bid, and in default of such deposit the land shall forthwith be again put up and sold and such person shall be liable for the expenses attending the first sale and any deficiency of price which may occur on the re-sale which may be recovered from him by the Collector as if same were an arrear of land revenue. 285-E. The full amount of purchase money shall be paid by the purchaser on or before the fifteenth day from the date of the sale at the district treasury or any sub-treasury and in case of default the deposit, after the expenses of sale have been defrayed therefrom, shall be forfeited to Government and the property shall be re-sold and the defaulting purchaser shall forfeit all claims to the property or to any part of the sum for which it may be subsequently sold. 285-G. No sale after postponement under Rule 285-A, 285-D or 285-E in default of payment of the purchase money shall be made until a fresh proclamation has been issued as prescribed for the original sale. 285-G. No sale after postponement under Rule 285-A, 285-D or 285-E in default of payment of the purchase money shall be made until a fresh proclamation has been issued as prescribed for the original sale. 285-H. (1) 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 arrear, 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 258-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) Deleted. (iii) The order of the Commissioner passed under this rule shall be final.” 13. Referring to Rule 285(A), learned counsel for the petitioner contended that auction could have been made either by the Collector in person or by an Assistant Collector specially appointed by him in this behalf. He pointed out that in the present case, it is evident from the counter-affidavit that proclamation of sale was issued by Deputy Collector, Aonla and Tehsildar, Aonla and auction was made by Naib Tahsildar, which is not consistent with the procedure prescribed in the statute and therefore, the entire proceedings are illegal. 14. It would be appropriate to consider the aforesaid submission in the light of the definition of “Collector” in 1950 Act. 14. It would be appropriate to consider the aforesaid submission in the light of the definition of “Collector” in 1950 Act. The statute initially enacted contain the definition of Collector under Section 3(4) of 1950 Act as under: “Collector” includes an Assistant Collector of the first class empowered by the State Government by a notification in the Gazette to discharge all or any of the functions of a Collector under this Act. 15. This definition of Collector underwent an amendment in 1974 and after the amendment it reads as under: “Collector” means an officer appointed as Collector under the provisions of U.P. Land Revenue Act, 1901, and includes an Assistant Collector of the first class empowered by the State Government by a notification in the Gazette to discharge all or any of the functions of Collector.” (Words in bold in paras 16 and 17 denotes the difference) 16. Under Section 3(27) it is provided that the words and expressions, under-proprietor, sub-proprietor, revenue “mahal”, Collector, Assistant Collector, Assistant Collector-in-charge of sub-division, Commissioner, Board, Tahsildar and minor, not defined in Act, 1950 and used in the United Provinces Land Revenue Act, 1901 (hereinafter referred to as “1901 Act”) shall have the meaning assigned to them in that Act. 17. The Collector is appointed under Section 14 of 1901 Act. It reads as under: “The State Government shall appoint in each district an officer who shall be Collector of the district and who shall throughout his district, exercise all the powers and discharge his duties by this Act or any other law for the time being in force. The term includes a Deputy Commissioner as well as the Superintendent of Dehra Dun” 18. Considering the old definition of Collector, this Court in Paras Nath Singh v. State of U.P., 1960 ALJ 549, held that under Section 223 of 1901 Act, powers of a Collector can be conferred on an Assistant Collector of First Class. The powers of a Collector cannot be conferred on a ‘Tahsildar’ since he as such is not an Assistant Collector of First Class. 19. This decision of Paras Nath Singh (supra) has been affirmed in intra Court appeal by the Division Bench in State of U.P. and another v. Paraspati Gram Samaj, 1965 RD 379. 20. The powers of a Collector cannot be conferred on a ‘Tahsildar’ since he as such is not an Assistant Collector of First Class. 19. This decision of Paras Nath Singh (supra) has been affirmed in intra Court appeal by the Division Bench in State of U.P. and another v. Paraspati Gram Samaj, 1965 RD 379. 20. Recently a Division Bench of this Court in M/s R.D.Cements Industries Pvt. Ltd. v. Collector/D.M., Lucknow, 2010(3) ADJ 263 (DB)(LB), has said: “Accordingly giving harmonious construction to provisions contained in sub-section (4) of Section 3 read with Rule 285-A of the U.P.Z.A. & L.R. Rules, the auction and sale proceeding may be conducted either by the Collector himself or the Assistant Collector of First Class duly appointed by the Collector and no other authority.” “The Collector or Assistant Collector cannot delegate power to Naib Tahsildar to hold the auction and sale proceeding under Rule 285-A of the U.P.Z.A. & L.R. Rules.” 21. Learned standing counsel, however, has relied on a notification dated 7th January, 1964 in his written argument and in para 8 thereof says that by notification No. 3937/1-A-1165(1)/54 dated 7th January, 1964 all Tahsildars were appointed as Assistant Collector, First Class. It further says that by another notification No. 3937(1)/JA-1166(1)/54 all Assistant Collector First Class appointed under the aforesaid notification have been empowered to discharge all functions of Collector under Section 122-B of Act 1950. 22. Though copies of the aforesaid notifications have not been placed on record but assuming what is stated therein correct, firstly, it cannot be said that the said notification authorises a Naib Tahsildar to conduct auction sale or even an Assistant Collector First Class who is not especially empowered by the Collector to do so can hold auction under Rule 285-A of 1952 Rules. It is evident that unless authorised by Collector, an Assistant Collector also cannot hold auction. It is different thing, if in the matter of appointment of Collector under 1901 Act, the State Government includes an Assistant Collector First Class also but that is not sufficient to authorise him to further authorise anyone else to hold auction. Moreover, the aforesaid notification at the best are in reference to Section 122-B and therefore would not help the respondents in the matter of auction governed by Section 284 read with Rule 285A of the Rules. 23. Moreover, the aforesaid notification at the best are in reference to Section 122-B and therefore would not help the respondents in the matter of auction governed by Section 284 read with Rule 285A of the Rules. 23. Justice M.C.Desai in Paras Nath Singh (supra) while considering Section 223 of 1901 Act said that Tahsildar is a Revenue Officer appointed under Act 1901, Section 17. The Assistant Collector First Class or Second Class is a different officer appointed by the State Government under the said Act. A Tehsildar as such is not an Assistant Collector either of Ist Class or 2nd Class. Section 224 of Act 1901 though empowers the State Government to confer upon any Tehsildar all or any powers of the Assistant Collector Second Class but not with those of Assistant Collector First Class. The Collector is another Revenue Officer appointed by the Government under 1901 Act. Section 223 empowers the State Government to confer upon any Assistant Collector of First Class all or any of the powers of the Collector. In exercise of this powers the State Government conferred power of a Collector upon all Assistant Collector First Class. When State Government in its wisdom conferred powers of Assistant Collector upon all Assistant Collector of First Class, it would not mean that a Tahsildar can claim to possess power of a Collector when authorises to discharge functions of Assistant Collector of Ist Class. All the officers namely Assistant Collector First Class, Second Class, Tahsildar are different officers in their own capacity. When Tahsildar invested with a power of Assistant Collector, he still remain a Tahsildar and does not become an Assistant Collector. Same is the position when an Assistant Collector First Class is conferred power of a Collector, he himself would not be a Collector as such. 24. My attention is drawn to another decision of Hon’ble Single Judge’s judgment in Jagat Pal Singh v. State of U.P., 1994 ACJ 608, wherein a circular of Board of Revenue issued on 17th January, 1976 has been considered conferring power upon Assistant Collector/Sub-Divisional Officer to perform functions of Collector. The reliance is not correct. It shows that in respect to the auction under Section 286 of 1950 Act, Board of Revenue authorised Assistant Collector/Sub-Divisional Officer to conduct auction proceedings subject to condition that confirmation of sale shall be done by Collector. The reliance is not correct. It shows that in respect to the auction under Section 286 of 1950 Act, Board of Revenue authorised Assistant Collector/Sub-Divisional Officer to conduct auction proceedings subject to condition that confirmation of sale shall be done by Collector. This Court held that the circular of Board of Revenue would not validate an auction conducted under Section 284 of 1950 Act where the procedure under Rules 285-A to 285-I shall apply. The Court said: “A perusal of this notification goes to show that the Sub-Divisional Officer/Assistant Collector has only been authorised by this notification to conduct the auction proceedings under Section 286 of the Zamindari Abolition and Land Reforms Act subject to the condition that confirmation of sale shall be done by the collector. The power of the Collector, when he acts under Section 284 of the Zamindari Abolition and Land Reforms Act has not been conferred upon the Assistant Collector/Sub-Divisional Officer by this notification. As seen in the earlier part of this judgment the sale in the present case has taken place under the provisions of Section 284 of the Act and not under Section 286. Therefore this notification dated 17.1.1976 will not apply to the facts of the present case. Moreover, there is another ground on the basis of which it cannot be said that the Assistant Collector/Sub-Divisional Officer has been invested with the power to confirm the sale. The last sentence of the notification dated 17.1.1976 clearly goes to show that the power of conducting sale proceedings under Section 286 of the Act has been conferred upon the Assistant Collector/Sub-Divisional Officer with the condition that confirmation of sale shall be done by the Collector. It means that only a power to auction the property or conduct the sale has been given to the Assistant Collector/Sub-Divisional Officer and not a power to confirm the sale which has been given to the Collector under the provisions of Rule 285-I of the U.P. Zamindari Abolition and Land Reforms rules. Therefore this notification does not, in any way, confer powers on the Assistant Collector/Sub-Divisional Officer, holding the charge of a sub-division, to confirm the sale. Power to confirm the sale still vests with the Collector. Therefore this notification does not, in any way, confer powers on the Assistant Collector/Sub-Divisional Officer, holding the charge of a sub-division, to confirm the sale. Power to confirm the sale still vests with the Collector. It is the settled view that a person who has purchased the property in auction sale has a right to approach the Court but a person who has not derived any title in the auction sale cannot come to the Court for enforcing his rights. Unless a right is conferred on the person that right cannot be got enforced by him by means of writ petition or by suit. The basis on the title on which the petitioner has filed the present writ petition is not there. Therefore the petitioner cannot complain that the Collector had no power to pass orders for re-auction of the property in dispute.” 25. Moreover, in my view, neither the Act nor the Rules in question confer power upon Board of Revenue to authorise Assistant Collector in such matter as this power is vested with the State Government. 26. In Ram Awadh Tiwari v. Sudarshan Tiwari and others, 2008(6) ADJ 776 (DB), this question attracted this Court’s attention specifically. In exercise of power under Section 3(4) of 1950 Act, a notification was issued on 11th June, 1953 to the following effect: “In exercise of the powers conferred by clause (4) of section 3 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 [(Act 1 of (1951)], the Governor is pleased to empower all the Sub-Divisional Officers in Uttar Pradesh except those in the districts of Almora, Garhwal, Tehri Garhwal and Rampur to discharge all the functions of a “Collector under the said Act.” 27. Another notification was issued on 5th December, 1968 whereunder Sub-Divisional Officers were empowered to exercise all powers of Collector under 1951 Act except the power under Section 198 of the said Act. Another notification was issued on 5th December, 1968 whereunder Sub-Divisional Officers were empowered to exercise all powers of Collector under 1951 Act except the power under Section 198 of the said Act. Another notification under Section 3(4) of 1950 Act was issued on 17th January, 1976 to the following effect: “In exercise of the powers under clause (4) of section 3 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951), the Governor is pleased to empower all the Assistant Collectors of the First Class, who are Incharge of the sub-division, to discharge the functions of a “Collector” under Section 286 of the said Act in respect of any holding of a defaulter of which he is a Bhumidhar. Sirdar or Assami, subject to the condition that such sales are approved by the Collector.” 28. It was contended in Ram Awadh Tiwari (Supra) that in view of aforesaid notifications, a Sub-Divisional Officer and Assistant Collector can exercise all the powers of Collector including that of auction. 29. In the aforesaid judgment, this Court observed that Deputy Collector has been conferred power of Collector under 1950 Act except that of Section 198 but Assistant Collector, who is In charge of the Division has been authorised to exercise functions of Collector under Section 286 but the power of confirmation of sale still continued to be vested in Collector. 30. Even if what has been said above, can it be said that rule 285 has been followed in the present case? The answer would be in the negative. Annexure - 1 to the writ petition shows that Naib Tehsildar was authorised to conduct the auction of property in dispute. Pursuant thereto, the auction sale has been held by Naib Tehsildar and he sought confirmation of auction from the Dy. Collector, vide his report dated 9.6.1986, who has confirmed the same on the same date. 31. It shows that for the purpose of auction, Naib Tahsildar was authorised. By no stretch of imagination it can be said that this action and authorization of Naib Tahsildar satisfy the requirement of Rule 285-A of 1952 Rules which contemplates auction either by Collector or an Assistant Collector authorised in this behalf by him. In no manner Assistant Collector would include a Naib Tehsildar. By no stretch of imagination it can be said that this action and authorization of Naib Tahsildar satisfy the requirement of Rule 285-A of 1952 Rules which contemplates auction either by Collector or an Assistant Collector authorised in this behalf by him. In no manner Assistant Collector would include a Naib Tehsildar. Therefore the auction conducted on 27th January, 1997 was evidently not in conformity with Rule 285-A of 1952 Rules. 32. Then comes the question whether Rule 285-D has been followed or not. It contemplates that 25% of the auction money shall be deposited at the fall of hammer and the remaining 75% within 15 days. In the circumstances it cannot be said that Rule 285-D has not been followed. As is evident from the record, on the date of auction, i.e. 13.3.1986, 25 percent of the bid amount was deposited by respondent No. 4 and the rest of the amount was to be deposited by 28.3.1986. But, as stated by the petitioner in paragraph 8 of the writ petition, the said amount was deposited on 31.3.1986.. This fact has been denied by respondent No. 4 in paragraph 8 of the counter-affidavit and he has also filed two receipts of balance of amount dated 28.3.1986 with it, being annexure Nos. - 2 and 3. Thus, it cannot be said that rule 285-D has not been followed in the case in hand. 33. In view of the above, it is, thus, clear that though there is no non-compliance of Rule 285-D and 285-E, yet, it cannot be said that the auction had been conducted by the competent authority and, therefore, there is a clear violation of rule 285-A. 34. Now, the crucial question at this stage would be the effect of non-compliance of rule 285-A. 35. The Apex Court has considered this issue in State of U.P. and others v. M/s Swadeshi Polytex Ltd. and others, 2009 (107) RD 22 (SC) and in para 14 of the judgment relying on an another decision in S.J.S. Business Enterprises (P) Ltd. v. State of Bihar, 2004 (56) ALR 115 (SC), the Apex Court held that such an auction would be illegal and inconsistent with the procedure prescribed in Rule 285 and 285-A. 36. In Swadeshi Polytex Ltd. (supra) which was a judgment arising out of a Division Bench judgment of this Court, Apex Court clearly held that procedure prescribed for auction in Rule 285-A and onwards is mandatory and non observance thereof shall vitiate entire auction. It is worthy to mention at this stage that after 42nd amendment of Constitution though right to property is no more a fundamental right but still it is a constitutional right guaranteed under Article 300-A which says that no person shall be deprived of his property except in accordance with procedure prescribed in law. Since Constitution guarantees a person of his right to property except procedure prescribed in law meaning thereby in the matter of procedure, observance thereof has to be in words and spirit strictly and consistent thereto, failing which deprivation of property would be illegal and also unconstitutional being violative of Article 300-A of Constitution of India. 37. The petitioner has made a serious allegations agtainst official respondents but they proposed not to file any reply. The manner in which the auction in question has been held, clearly shows that it is not valid and there is a clear non-compliance of rule 285-A. The petitioner has been deprived of his property without following the procedure prescribed in law. For this defect/illegality in conducting the auction, responsibility lie solely upon respondent Nos. 1 and 2. The petitioner has suffered and remained deprived of the benefit of his property for the last almost 25 years on account a serious illegality committed by respondent Nos. 1 and 2. In these circumstances, in my view, petitioner is entitled for a suitable cost which should be exemplary as well as compensatory in nature. 38. In view of the above, the writ petition is allowed. 39. The auction impugned in the writ petition is hereby quashed. As a result of quashing of auction in question, any subsequent proceeding conferring any right upon respondent No. 4 in respect of the land in dispute shall stand nullified and would not confery any right, title, benefit or interest upon respondent No. 4. So far as the money deposited by respondent No. 4 is concerned, he shall be entitled for its refund. So far as the money deposited by respondent No. 4 is concerned, he shall be entitled for its refund. However, for the simple reason that he has been enjoying the property in question during the entire period therefore, there is no occasion to allow any interest on the amount paid by respondent No. 4. 40. The petitioner shall also be entitled to the costs, quantified to Rs. 50,000/- against respondent No. 2. ——————