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2013 DIGILAW 476 (ALL)

MUKUT BIHARI TIWARI v. ALLAHABAD BANK

2013-02-08

NARAYAN SHUKLA

body2013
JUDGMENT Hon’ble Shri Narayan Shukla, J.—Heard Mr.S.K.Tiwari, learned counsel for the petitioner and Mr.M.A.Khan, Senior Advocate assisted by Mr.Mohiuddin Khan, learned counsel for the respondents. 2. The petitioner has sought the review of order dated 25th of November, 2009, passed in writ petition No. 5679 (MS) of 1982, on the ground that it is against the facts of the case on record. It is stated that this Court has taken the matter as the auction sale has been confirmed and sale certificate has been issued and further the possession was delivered to the auction purchaser. However, this observation of the Court is contrary to the facts on record. 3. The learned counsel for the petitioner contended that in the writ petition the petitioner stated that the sale proclamation was issued for holding auction sale on 16.1.1982, however, it was postponed on several occasions, but at no point of time a fresh proclamation was issued for the postponed date, whereas Rule 285-G of the U.P.Zamindari Abolition and Land Reform Rules, 1952, provides that no sale after postponement under rules 285-A and no re-sale under Rule 285-D in default of payment of purchase money shall be made until a fresh proclamation has been issued as prescribed for the original sale. 4. Against the loan the petitioners also deposited some of the amount, which has not been considered. The land including the Tube-well and trees has not been properly evaluated. Thus, it is stated that all these questions, which were raised before the writ Court, have not been considered in its decision. 5. He also made an effort to establish some manipulation and tampering in the original record of auction. The learned counsel for the petitioners further submitted that this Court also failed to appreciate the fact that this Court on 23rd of November, 1982, passed an interim order to the effect that in case the sale has not been confirmed, the same shall not be confirmed till further orders, which was operating till the date of decision. He further stated that on 16th of December, 2004 this Court directed the petitioner to deposit a sum of Rs. 50,000/-, which shall be subject to further order being passed by this Court while deciding writ petition. 6. Pursuant to the aforesaid order the petitioners deposited Rs. He further stated that on 16th of December, 2004 this Court directed the petitioner to deposit a sum of Rs. 50,000/-, which shall be subject to further order being passed by this Court while deciding writ petition. 6. Pursuant to the aforesaid order the petitioners deposited Rs. 50,000/- on 17th of January, 2005 in the Registry of the Court and till date neither auction has been confirmed nor has the sale certificate been issued nor has the possession been delivered to the auction purchaser. 7. In support of his submissions he cited the following decisions : (1) Tamil Nadu Electricity Board and another v. N.Raju Reddiar and another, AIR 1997 SC 1005 . (2) Rajendra Pal Singh v. Commissioner, Agra Division, Agra and others, 2012(6) ADJ 396 . (3) Vindhayachal v. Commissioner, Azamgarh Division, Azamgarh and others, 2009(6) ADJ 105 . (4) Mohd.Yamin and others v. Commissioner, Meerut Division Meerut and others, 1993 RD 62. (5) Shri Nath (dead) through LRs v. Deputy Director of Consolidation, Varanasi and others, 2009 (108) RD 62. 8. He further submitted that the petitioners’ land about 3.159 acre has been auctioned only for Rs. 9,550/-, whereas from the record of the auction sale proceeding, it can be seen that the minimum amount of bid was fixed as Rs. 12,000/-, which is against the law laid down by this Court in the case of Shri Nath (dead) through LRs v. Deputy Director of Consolidation, Varanasi and others (Supra) and in the case of Vindhayachal v. Commissioner, Azamgarh Division, Azamgarh and others, 2009 (Supra). 9. On the other hand Mr.Mohd.Arif Khan, learned Senior Advocate appearing for the respondents submitted that all these contentions have been considered by this Court at the time of decision. This Court had summoned the original record of auction proceeding and examined it, but no tampering or manipulation in the record was found, therefore, now at this stage there is no occasion to re-examine it. So far as the facts regarding the confirmation and issuance of sale certificate as well as delivery of possession are concerned, which has been recorded wrongly, he submits that he has no objection to correct the same as he admits that since this Court stayed the confirmation of sale, it was neither confirmed nor was sale certificate issued in the matter. 10. 10. At this stage also I summoned the original record of auction proceeding and have gone through it. The date of auction is 16th of January, 1982. A bare perusal of the original record shows that the sale proclamation in ZA Form 74 was issued on 9.12.1981 by fixing the date of auction i.e. 16th of January, 1982, which shows that there was no violation of Rule 285-A. The record further shows that the petitioner has deposited Rs. 1,000/- on 6th of March, 1981, but the same has not been taken into consideration as the ZA Form 74, which is on record dated 26.6.1981 indicates the total dues as Rs. 7451.60 plus interest. The date of payment of Rs. 1,000/- is 6th of March, 1981, but in the sale proclamation dated 9th of December, 1981 the same very amount i.e. Rs. 7451.60 plus interest has been shown as due, therefore, to this extent the sale proclamation is found defective. 11. Rule 283 of the Rules provides that in proclamation for sale under section 286, the Collector shall state the amount of the annual demand and the estimated value of the property calculated in accordance with the rules in Chapter XV of the Revenue Manual. However, upon perusal of the sale proclamation dated 9th of December, 1981, I do not find that the estimated value of the land in dispute is recorded therein. The original record of the auction proceeding also establishes that the minimum bid amount was fixed as Rs. 12,000/-. Four persons participated in the auction proceeding, but none of them offered the said amount, even then the auction officer finalized the auction in favour of contesting respondent, against the bid amount of Rs. 9,550/-, which is not sustainable in the eye of judgment pronounced in the case of Shri Nath (dead) through LRs v. Deputy Director of Consolidation, Varanasi and others (Supra) and in the case of Vindhayachal v. Commissioner, Azamgarh Division, Azamgarh and others (Supra). 12. Thus, the learned counsel for the petitioners submits that the finalisation of auction against the amount lower than the minimum bid amount fixed by the auction officer has caused substantial injury to the petitioners, which has not been considered by the Court at the time of decision of the writ petition, therefore, it is liable to be redressed through the instant review petition. 13. 13. One question has also been raised by the learned counsel for the petitioners that through the writ petition, the petitioners stated that the auction sale was not personally supervised by the Collector nor by the Assistant Collector specially appointed therefor, therefore, the proceeding vitiates in law. He drew the attention of this Court towards the case of Mohd.Yamin and others (Supra), in which this Court has held that the sale of the land was to be made 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. He drew attention of this Court towards the provisions of Rule 285-A of the Rules also which provides that 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. 14. He further placed one another case decided by this Court i.e. Rajendra Pal Singh v. Commissioner, Agra Division, Agra and others, 2012(6) ADJ 396 . In this case also auction proceeding was done by Naib Tehsildar, who was authorised for that very purpose. However, this Court held that 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 authorized in this behalf by him. In no manner Assistant Collector would include a Naib Tehsildar. 15. In order to determine this question, I perused the original record of auction proceeding and found that it is the Naib Tehsildar, who conducted the auction proceeding under the order of the Assistant Collector, but it does not indicate the personal involvement either by the Collector or by the Assistant Collector to conduct the auction proceedings as is required under Rule 285-A, therefore, I am of the view that for this reason also the auction proceeding is vitiated as has been held by this Court in the case of Rajendra Pal Singh v. Commissioner, Agra Division, Agra and others (Supra). 16. The record also shows that the minimum bid was fixed for Rs. 16. The record also shows that the minimum bid was fixed for Rs. 12,000/-, however, the auction has been finalized against Rs. 9,550/-, which is against the law laid down by this Court in the cases of Shri Nath (dead) through LRs v. Deputy Director of Consolidation, Varanasi and others (Supra) and Vindhayachal v. Commissioner, Azamgarh Division, Azamgarh and others (Supra). 17. In light of the aforesaid discussions, I find that the material questions, which are involved in the matter have been escaped from discussion by this Court earlier in the order passed by this Court on 25.11.2009. Therefore, I hereby recall the order dated 25.11.2009 and restore the writ petition in its original number. 18. After hearing learned counsels for the parties as well as upon perusal of the record, I find that the auction proceeding in question as discussed above is vitiated by law. Therefore, I hereby quash the same. In the result the writ petition is allowed. 19. The petitioner is permitted to withdraw the amount deposited with this Court for payment of loan. The respondent No. 4 shall be entitled to get refunded the amount deposited by him in accordance with law. 20. The original record of the auction proceeding is being returned to the learned Standing Counsel for onward submission to the officer concerned for keeping it on record. ——————