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2016 DIGILAW 2980 (ALL)

Saliha Begum v. District Magistrate, Gonda

2016-08-30

A.P.SAHI, VIJAY LAXMI

body2016
JUDGMENT The petitioner-Smt. Saliha Begum is the auction purchaser of a house that belonged to the husband of the respondent No. 4, namely, Sri Mahfooz Ahmad. The respondent No. 4 Smt. Ashma Khatoon is stated to have acquired the property through a sale deed after the said property became subject matter of an attachment in auction proceedings that arose out of a default in repayment of a loan borrowed by Sri Mahfooz Ahmad. The proceedings of auction came to be questioned by the respondent No. 4 in terms of Section 285 -I of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 which was the provision then available for filing objections. The same was rejected and further proceedings in relation thereto by way of an appeal also came to be dismissed. On the rejection of the Appeal, a Revision was filed before the Board of Revenue that was dismissed on merits on 15.2.2007, whereafter the respondent No.4 filed a Writ Petition no. 2493 (MS) of 2007 that came to be ultimately dismissed on 5.8.2013. 2. The petitioner-auction purchaser started claiming possession over the said property and for that she moved an application before the District Magistrate who passed an order on 14.8.2013 directing the Sub-Divisional Magistrate to take action as per law. The Sub-Divisional Magistrate passed an order on 18.8.2013 calling upon the Naib-Tahsildar to proceed to take steps for delivering possession to the petitioner. 3. In the meantime, the petitioner aggrieved by the slow progress in the delivery of possession filed a writ petition giving rise to this recall application, being Writ Petition No. 8133 (MB) of 2013 and prayed for a Mandamus that the respondents be directed to consider the application for delivery of possession and to act accordingly by executing the same. 4. The District Magistrate by the order dated 12.9.2013 on the presentation of the writ petition was summoned by the High Court to appear in person alongwith the records and notices were also issued to the respondent No.4. The District Magistrate filed an application dated 6.11.2013 supported by an affidavit dated 31.10.2013. The respondent No.4 had also put in appearance by filing a counter affidavit on 1.10.2013. The Division Bench that had summoned the District Magistrate passed an order on 3.10.2013 which is to the following effect: - "In pursuance to the order dated 12.9.2013, passed by this Court, Ms. The respondent No.4 had also put in appearance by filing a counter affidavit on 1.10.2013. The Division Bench that had summoned the District Magistrate passed an order on 3.10.2013 which is to the following effect: - "In pursuance to the order dated 12.9.2013, passed by this Court, Ms. Roshan Jacub, District Magistrate, Gonda is present. She makes a statement that auction was held in the year 2001. Mr. Anil Kumar Mishra, Sub Divisional Magistrate is also present. A statement has been made by him that the auction was held without publication in the newspaper in favour of the petitioner. Keeping in view the fact that the auction was held without following statutory mandate as provided in U.P. ZALR Act and rules framed thereunder, we direct the District Magistrate to file an affidavit containing parawise reply to the writ petition and also bring on record all material with regard to auction and sale of the property of the respondent No.4 within two weeks, rejoinder thereto be filed within the next one week. The respondents shall place on record each and every order passed by this Court in earlier writ petition before Hon'ble Single Judge. Rejoinder affidavit to the counter affidavit filed by Mr. Rajendra Prasad on behalf of opposite party No.4 which is taken on record be filed within three weeks. List in the first week of November, 2013. In the meantime, it is provided that status quo shall be maintained by the parties with regard to the premises in question. However, in case the Collector finds that the private respondent has no house to live, then she may be permitted to reside therein till the next date of listing. Personal appearance of the officer is exempted." 5. The affidavit of the District Magistrate categorically narrates the litigative history of the case and then, in paragraph - 15 indicates that the sale deed was executed on 24.9.2013 in favour of the petitioner and the possession was delivered to the petitioner on 25.9.2013 for which a possession memo was executed. The said statement is based on record. 6. The respondent No.4 also filed her affidavit before this Court and in between also sought exemption from 80 C.P.C. as the respondent No.4 intended to file a suit in relation to the possession of the premises in question. The said statement is based on record. 6. The respondent No.4 also filed her affidavit before this Court and in between also sought exemption from 80 C.P.C. as the respondent No.4 intended to file a suit in relation to the possession of the premises in question. The application under Section 80 C.P.C. was rejected by the trial court against which a Revision was filed but the same was dismissed. 7. Noticing these facts the petitioner filed an application on 10.10.2013 being C. M. Application No. 118936 of 2013 praying that the petitioner be permitted to withdraw the writ petition and the Court may dismiss the writ petition as withdrawn. However, in the affidavit in support thereto all the facts were narrated but the prayer in the affidavit was made to the effect that the petition has become infructuous on account of the developments aforesaid. 8. On this application, the Court passed an order dated 3.1.2014 directing the petitioner to appear in person on 10.1.2014. On 10.1.2014, learned counsel for the petitioner made a request that he does not want to press the application for withdrawal and therefore, the application was dismissed as not pressed on 10.1.2014. 9. The petitioner thereafter moved a second application dated 6.1.2014 praying for withdrawal of the writ petition and filed an affidavit in support thereof wherein in paragraph - 6 it was stated that since the sale deed has been executed, therefore, the writ petition has become infructuous. In paragraph - 4 of the said affidavit, it had also been stated that the petitioner has already been put into possession. This second application was allowed but the writ petition was dismissed as withdrawn and not as infructuous, on 10.1.2014. 10. The present recall application has been filed by the respondent no. 4 contending that under the garb of the interim orders passed, as indicated above, the possession was forcibly taken from the respondent no. 4 and therefore, the order dismissing the writ petition as withdrawn be recalled and the writ petition be dismissed on merits. It is further prayed therein that the possession of the respondent No.4 be restored as it had been altered after filing of the writ petition in the background aforesaid. 11. A Division Bench on 19.2.2016 issued notices and also called upon the learned counsel for the petitioner to file a response and advance his submissions in this regard. 12. It is further prayed therein that the possession of the respondent No.4 be restored as it had been altered after filing of the writ petition in the background aforesaid. 11. A Division Bench on 19.2.2016 issued notices and also called upon the learned counsel for the petitioner to file a response and advance his submissions in this regard. 12. Today, we have heard learned counsel for the parties at length and we have also perused the objections filed to the said application on behalf of the petitioner. 13. The narration of the aforesaid facts clearly establishes that the petitioner has been unable to successfully deny the factum of delivery of possession on 25.9.2013. The possession may have been delivered after the District Magistrate had been summoned vide order dated 12.9.2013 but the delivery was made by the authorities on 25.9.2013, the status quo whereof was maintained vide order of the Court dated 3.10.2013. The cause and the relief in the petition both were rendered infructuous. 14. In the aforesaid background and the fact that the matter relating to the auction has already become final under the judgment dated 5.8.2013, the contentions raised by Sri Shukla, learned Counsel for the respondent No.4 that the auction proceedings are invalid on several grounds cannot be looked into by us. We are not sitting in appeal over the final judgment of the High Court in the writ petition filed by the respondent No.4 herself that came to be dismissed on 5.8.2013. Any arguments advanced impeaching the auction proceedings by the respondent no. 4, therefore, cannot be entertained by us in a writ petition filed by the petitioner which was for a Mandamus to deliver possession. 15. However, in the facts of the present case, there is a distinction to be understood between the withdrawal of a writ petition and a writ petition having become infructuous. When the petitioner of a writ petition prays for withdrawal of the writ petition, then he is presumed to not press his contentions which amounts to an abandonment of any claim in the writ petition. When the petition is dismissed as infructuous, then the connotations are slightly different, inasmuch as it is the cause of action which does not survive rendering the petition as infructuous. 16. When the petition is dismissed as infructuous, then the connotations are slightly different, inasmuch as it is the cause of action which does not survive rendering the petition as infructuous. 16. In this view of the matter, it would be appropriate to recall the order dated 10.1.2014 and accordingly, the recall application is allowed but the writ petition stands dismissed as infructuous. 17. The dismissal of this writ petition as infructuous would otherwise not take away or prejudice the rights if any of the respondent No.4 to contest her claim before the appropriate forum, if permissible, in accordance with law.