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2020 DIGILAW 589 (ALL)

Ram Palat Misra v. Board of Revenue

2020-02-24

SANGEETA CHANDRA

body2020
ORDER Sangeeta Chandra, J. 1. Heard the learned counsel for the parties and perused the record. 2. This Court had passed two detailed orders one of which dated 06.05.1994 after recording the submissions of the learned counsel for the petitioner, had stayed the further recovery proceedings and clarified that auction sale that had already taken place on 14.08.1992, shall not be confirmed and the petitioner's possession shall not be disturbed from the land in dispute nor the proceedings for arrest and detention of the petitioner shall take place until further orders. This writ petition was dismissed as infructuous on 17.07.2014 and thereafter, restored on an application made by the legal heirs of the petitioner. After restoration of the writ petition on 13.07.2017, the interim order was revived. The auction purchaser died in the meantime, and he was also substituted by his legal heirs and representatives. This Court while hearing the matter on 27.11.2017 noticed that no counter affidavit was filed by the State-respondents, therefore, directed the State-respondents that counter affidavit be filed failing which the Collector, Sultanpur, would appear in person to assist this Court. A Counter affidavit was filed in January, 2018. An additional counter affidavit was also filed thereafter by the State-respondents. When this Court heard the matter again on 03.10.2018, had passed the following orders:- "This Court as far as back on 06.05.1994 had directed the Collector to point out in writing the name of the institution in respect of whom or for whom the amount was being recovered from the petitioner within a period of three weeks, so that petitioner may implead that institution as party in these proceedings. The respondents were also directed to file counter affidavit indicating therein the nature of recovery and further indicating as to in respect of what amount or relating to which institution or bank, the recovery was being made. However, no such information has yet been furnished, though the matter has been pending before this Court 24 long years. In these circumstances, list this case on 11.10.2018, on which date, Sub Divisional Officer/Tehsildar concerned shall be present before the Court along with entire record relating to the recovery and auction proceedings. The record to be produced under this order before the Court shall include all the relevant documents right from the sale certificate to further proceedings which might have been drawn by the revenue authorities." 3. The record to be produced under this order before the Court shall include all the relevant documents right from the sale certificate to further proceedings which might have been drawn by the revenue authorities." 3. When the case was taken up by this Court on 11.10.2018, it took notice of the fact that the State-respondents stated in their various affidavits that the files relating to the auction sale were not traceable in their office. This Court directed the petitioner to implead the Baroda Kshetriya Gramin Bank, Branch-Alipur Sarawan, Sultanpur through its Bank Manager as Respondent no. 5 and Central Bank of India, Branch Kadipur, Sultanpur through its Branch Manager as Respondent no. 6 respectively in this petition and also directed the Banks concerned to file their counter affidavits. A direction was also issued that the Commissioner shall ensure filing of affidavits explaining the efforts made by the parties for tracing the auction sale file. 4. The petitioner took steps twice for respondent no. 5 but none has appeared on their behalf, although there is a service report that the undelivered cover has not been returned back. Service shall be deemed sufficient on respondent no. 5. With respect to the notice served on Respondent no. 6 to which Shri Gopal Kumar Srivastava, Advocate, appeared and was given time to file counter affidavit. The counter affidavit has not been filed and he says that the Bank cannot file any counter affidavit because no details regarding auction sale are available. All records are weeded out after auction proceeding concluded on 14.08.1992. 5. Since the respondent no. 5, Baroda Kshetriya Gramin Bank, Branch-Alipur Sarawan, Sultanpur has refused to appear before this Court or file any counter affidavit and the Central Bank of India, Branch, Kadipur, District Sultanpur, has also refused to file any counter affidavit giving the details of the loan allegedly taken by the petitioner and his Late wife Smt. Sita Devi and also his brother Sugreev who has also died. This Court cannot come to any definite conclusion with regard to the liability of the petitioner to pay the loan amount. 6. This Court cannot come to any definite conclusion with regard to the liability of the petitioner to pay the loan amount. 6. However, the petitioner says that it has come out in one of the affidavit filed by the State-respondents, on the basis of information received from the Bank that the Branch Manager, Baroda Kshetriya Gramin Bank, Branch-Alipur Sarawan, Sultanpur, had informed that the petitioner Ram Palat Mishra had taken two loans from the Baroda Kshetriya Gramin Bank i.e. PWO/69 and PWO/93, for growing crops and purchase of Buffalo and his wife Smt. Sita Devi had also taken a loan from the Baroda Kshetriya Gramin Bank i.e. PWO/70 for purchase of Buffalo and another loan for growing crops. The loan amount having remained to be paid in time, the total amount of Rs. 17,598.05 was found due against the petitioner and Rs. 28,392.70 was found due against his wife Late Sita Devi. The petitioner's brother Sugreev had taken a loan from the Central Bank of India, Kadipur, District Sultanpur for agricultural purposes also and Rs. 7,010.20 was found to be due against the said loan account, a total of Rs. 53,000.95 was due against the petitioner, his wife and his brother. The petitioner having inherited the property of his wife and his Late brother, the loan amount was sought to be recovered from Plot No. 416 & 417 situated at Village Hasanpur, Tehsil Kadipur, District Sultanpur, owned by the petitioner and they were put to auction on 14.08.1992 and purchased by the respondent no. 4 for a sum of Rs. 70,000/-. 7. The petitioner filed an Appeal in which initially there was an interim order, later on, it was dismissed by the Commissioner, Faizabad Division on 04.03.1993. The petitioner filed a Revision before the Board of Revenue where initially there was an interim order but the same was later on dismissed on 08.04.1994. 8. 4 for a sum of Rs. 70,000/-. 7. The petitioner filed an Appeal in which initially there was an interim order, later on, it was dismissed by the Commissioner, Faizabad Division on 04.03.1993. The petitioner filed a Revision before the Board of Revenue where initially there was an interim order but the same was later on dismissed on 08.04.1994. 8. It has been submitted by the learned counsel for the petitioner that since neither the Bank nor the State-respondents were able to show before this Court as to against which property the loan amount said to be due in the various loan accounts of the petitioner, his wife and his brother were taken, and it is the case of the petitioner that he is ready to pay the amount that the Bank had found due, at the time when the auction sale was conducted, and he still ready to pay the said amount, he may be allowed to deposit the same in the office of the Collector, who may then forward the amount in question to the Banks concerned and the property which has remained in his possession on the basis of the interim order granted by this Court, be released in his favour by this Court. 9. Learned counsel for the respondent no. 4 Ms. Aatiya Abid, says that she appears for the auction purchasers and his legal heirs and representatives and if this Court finds that there is no illegality in the procedure for conducting auction, the respondent no. 4 and his legal heirs and representatives cannot be prejudiced in this manner due to the loss of records regarding the auction sale in the office of the State-respondents and in the Banks concerned. 10. This Court finds from a perusal of the impugned order that there is an admission in the order passed on 04.03.1993 by the Commissioner who was dealing with the Appeal filed by the petitioner that strict compliance of Rule 283 was not ensured by the Tehsil Authorities and there was no indication of the actual worth of the property proposed to be sold in prescribed Form No. 74. Yet he observed that since the petitioner had not deposited the amount in question of the loans taken by him, his brother and his wife and that he received notice of the auction sale, the auction sale could not be, therefore, set aside. 11. Yet he observed that since the petitioner had not deposited the amount in question of the loans taken by him, his brother and his wife and that he received notice of the auction sale, the auction sale could not be, therefore, set aside. 11. This Court finds that at the time when the order was passed by the Commissioner, the auction sale file was perused by the Court, if the procedure prescribed under the Rules was not followed and there is an admission of such facts in the order passed by the opposite party no. 2, there was no reason for him to have dismissed the Appeal. Since the record which was perused by the Commissioner on 04.03.1993 is not available now before this Court and despite all best efforts being made by the State-respondents to trace out the file of the auction sale, such file could not be found, it shall be taken that the Commissioner when he perused the auction sale file made a correct noting of the facts regarding non-following procedure prescribed under the Rules. 12. The auction sale dated 14.08.1992 having not followed the prescribed procedure is set aside. The order dated 04.03.1993 passed by the Commissioner in Appeal and the order dated 08.04.1994 passed by the Board of Revenue in the Revision both are set aside. The petitioner has expressed his willingness to clear that loan amount alongwith interest and recovery charges upto date of auction sale i.e. 14.08.1992, it is admitted by the State-respondents that Rs. 53,000/- and odd was due, the petitioner shall deposit the said amount in the office of the opposite party no. 3 and the opposite party no. 3 shall direct the return of Rs. 70,000/- deposited by the respondent no. 4 now represented through his legal heirs and representatives to the said legal heirs and representatives alongwith admissible interest as per Rule 285 to the legal heirs and representatives of the respondent no. 4 within a period two months from the date a certified copy of the order is produced before him. 13. Learned counsel for the respondent no. 4 says that Rs. 70,000/- was deposited by them in the Treasury in 1992 and more than 28 years have passed if such amount had been deposited any Bank, the respondents would have earned interest thereon. 14. 13. Learned counsel for the respondent no. 4 says that Rs. 70,000/- was deposited by them in the Treasury in 1992 and more than 28 years have passed if such amount had been deposited any Bank, the respondents would have earned interest thereon. 14. Learned Standing Counsel for the State-respondents has pointed out from the affidavit filed by the State-respondents that the amount was tried to be returned to the respondent no. 4 and his legal heirs and representatives but they refused to take the same and therefore, it was deposited in the Treasury. If that be so, no direction can be issued to the State-respondents to return the amount alongwith interest to the respondent no. 4 and his legal heirs and representatives. It is a settled position in law that unless auction sale is confirmed no legal rent accrues on the date of auction. The petitioner had submitted his objections under Rule 285 on the same day and there was a stay on the confirmation of the auction sale both at the Appellate Stage and at the Revisional stage and this stay continued by means of an interim order granted by this Court on 06.05.1994. 15. Learned Standing Counsel has also pointed out the Rule 285 and of the U.P.Z.A. & L.R. Rules of 1952 which says that in case, the sale of any holding or other immovable property is set aside the auction purchaser shall be entitled to receive back his purchase money plus an amount not exceeding 5% of the purchase money, as the Collector or the Commissioner, as the case may be, may determine. 16. It has been submitted by the Standing Counsel that no party shall be prejudiced by an order of the Court, therefore, the State-respondents cannot now be saddled with the responsibility of returning Rs. 70,000/- deposited by the respondent no. 4 alongwith interest thereon to the respondent no. 4, his legal heirs and representatives. 17. The legal heirs of the Respondent no. 4 shall be returned the purchase money alongwith amount as admissible under Rule 285 of the U.P.Z.A. & L.R. Rules, 1952 within a period of two months by the Collector. 18. Writ petition stands allowed.