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2025 DIGILAW 625 (ALL)

Devesh Chandra Dwivedi v. Commissioner Faizabad

2025-04-10

IRSHAD ALI

body2025
JUDGMENT : Irshad Ali, J. 1. Heard Pt. S. Chandra, learned counsel for the petitioner and Shri Shiv Ganesh Singh, learned Standing Counsel appearing for the respondents-State. 2. By means of the present writ petition, the petitioner is challenging judgment and order dated 28.08.2002 passed by the Additional Commissioner (Judicial), Faizabad Division , Faizabad (Opposite party no.2 in Revision No.5583, contained in Annexure-27 to the writ petition and order dated 20.12.1999 passed by the Additional/Naib Tehsildar rejecting the application of the petitioner for mutation, contained in Annexure-20 and order dated 21.12.1999 passed by the Additional/ Naib Tehsildar directing to record the name of Anjum Faroz over the land in dispute, contained in Annexure-21 with further prayer that the direction in the nature of Mandamus be issued to the opposite parties not to implement the impugned judgment and order dated28.08.2002 passed by the opposite party no.2. 3. Factual matrix of the case is that one Jagesher son of Hari Charan tookloan from bank of Baroda in the year of 1981 against Plot No.1025 area 0-8-0, plot No.1344 area 0-3-10 and Plot No.961 area 0-2-5 situated at Village Katka Khanpur, Tehsil Sadar, District Sultanpur. Due to default of loan payment, District Magistrate appointed S.D.M. Sadar to hold the auction and S.D.M. Sadar, Sultanpur held auction as per Rule on 8.3.1989. Auction sale was conducted on 8.3.1989 by S.D.M. in favour of petitioner i.e. Devesh Chandra Dwivedi. S.D.M. made confirm the action sale by order dated 23.06.1989.S.D.M., Sadar, under political pressure and due to extraneous reasons cancelled the auction sale dated 8.3.1989 by order dated 28.07.1989 without power and jurisdiction. Subsequently, the petitioner filed objection before District Magistrate against order dated 28.071989 under Rule 285H but District Magistrate by order dated 9.2.1990 refused to entertain with observation that this remedy is open to aggrieved person whose land is auctioned and it is not for who has purchased the land. Petitioner (auction purchaser) approached the District Magistrate, Sultanpur narrated the whole facts. He instructed to contact SDM, the SDM, Sadar issued order of sale certificate on 10.01.1992 ignoring earlier order of SDM dated 28.07.1989 which was without jurisdiction. Petitioner (auction purchaser) approached the District Magistrate, Sultanpur narrated the whole facts. He instructed to contact SDM, the SDM, Sadar issued order of sale certificate on 10.01.1992 ignoring earlier order of SDM dated 28.07.1989 which was without jurisdiction. Sale Officer executed sale deed on 10.01.1992 in office of Sub Registrar, Sadar, Tehsil Sultanpur in favour of petitioner-Devesh Chandra Dwivedi and the same is still intact and not cancelled in any proceeding but despite of sale confirmation and auction sale deed in favour of petitioner he could not get possession on the land nor sale amount is ever returned to petitioner. Shri Jageshar took loan and his legal heir did not file objection within30 days before Collector or Commissioner, Faizabad under Rule 285-I of UPZA & LR Rules,1952. As such, as per statute Rule 285-J the aution sale was become confirmed after 30 days automatically by fiction of law. After Death of Shri Jageshar, his son by making concealment of fact deposited money in bank on 16.06.1999 in Bank and executed sale deed illegally in favour of one Sri Anjum Faroz on 23.06.1999. Tehsildar Sadar by order dated 20.12.1999 (Annexure-20 of the writ petition) passed the order of mutation. Against the order executing sale deed, the petitioner approached the SDM stating the fact that the land in question has been auctioned and sale has been confirmed in favour of the petitioner. Thereafter, S.D.M. by order dated 27.11.2000 (Annexure No.24) set aside the order of Tehsildar and restored the name of petitioner. Against the aforesaid order, revision was filed before the Additional Commissioner, Faizabad Division, Faizabad. Commissioner Vide order dated 28.8.2002 set aside the order of the SDM which is not challenged in the present writ petition. 4. Assailing the impugned order, submission of learned counsel for the petitioner is that Rule 285-J of the Zamindari Abolition and Land Reforms Rules provides that on expiration of 30 days from the date of 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 Collector or 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. In this view of the matter, the order passed under this Rule shall become final. 5. In this view of the matter, the order passed under this Rule shall become final. 5. Next submission of learned counsel for the petitioner is that under Rule 285-A, power of the Assistant Collector/ SDM is delegated by Collector, as such once the sale was become confirmed on 23.6.1989 passed by the SDM, thereafter he was having no authority in law to review or recall his power which was delegated by the Collector. 6. Next submission of learned counsel for the petitioner is that the Additional Commissioner in passing the order dated 28.8.2002 has committed manifest error of law by concealing the material fact that son of Jageshar deposited money in bank on 16.6.1999 and bank executed sale deed illegally in favour of one Sri Anjum Faroz on 23.6.1999. Tehsildar, Sadar by order dated 20.12.1999 passed the order of mutation. 7. Next submission of learned counsel for the petitioner is that Appellate Court has illegally been set aside the order passed by the SDM on 27.11.2000. He further submits that under Rule 285-J of U.P.Z.A. & L.R. Rule, 1952, after expiry of 30 days there is provision of statutory confirmation of auction sale. In support of his submission, learned counsel for the petitioner has placed reliance upon a judgment rendered in the case of Jagat Pal Singh v. State of U.P. and others reported in 1994(12)LCD Page 612 DB Allahabad. 8. On the other hand, learned Standing Counsel submits that there is no illegality or infirmity in the order passed by the Additional Commissioner and it is just and valid order. Next submission of learned Standing Counsel is that after deposit of money by the son of Jageshar, Bank executed sale deed in favour of Sri Anjum Faroz. 9. Having heard the rival submissions of learned counsel for the parties, I have perused the material on the record as well as case-law cited by learned counsel for the petitioner. 10. Next submission of learned Standing Counsel is that after deposit of money by the son of Jageshar, Bank executed sale deed in favour of Sri Anjum Faroz. 9. Having heard the rival submissions of learned counsel for the parties, I have perused the material on the record as well as case-law cited by learned counsel for the petitioner. 10. To decide the controversy in hand, provisions of Rules 285-H, 285-I and 285-J of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 are being quoted hereinbelow: " 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 whichthe 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 cost 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 entitledto make an application under this rule. (2)[***] SYNOPSIS 1. Extension of period of depositing amount under Rule 285-H.....368 3. Setting aside of sale.......368 2. Setting aside of sale -Material irregu larity ........................................368 4. Objection under ….….........369 1. Extension of period of depositing amount under Rule 285-H.- The power of Court to extend the period of depositing amount stipulated in Rule 285-H of Rules of 1952, is not in any manner fettered by Rule 285-J. High Court under Article 226 has power not only to issue prerogative writs but it can also issue such orders as may be deemed fit and proper in the ends of justice for the enforcement of rights conferred by Part III and for any other purpose. 2. 2. Setting aside of sale- Material irregularity.- Rules provide that any person whose holding or other immovable property has been sold under the Act, may at any time within 30 days from the date of sale, apply to the Collector to have the sale set aside on his depositing in Collector’s Office the amount enumerated in clause (1) to (3) of the Rules. 3. Setting aside of sale.- On expiration of 30 days from the date of sale, the Collector was enjoined to pass an order confirming the sale after satisfying himself that the purchase of land in question by the bidder would not contravene the provisions of Section 154 of the Act, provided that no application as mentioned in Rule 285-H and 285-I of Rules has been made for cancellation of auction sale or if made had been rejected by the Collector. In order XXI, Rule 89 as well as in Rule 285-H, U.P. Zamindari Abolition and Land Reforms Rules, the sale shall be set aside if the person whose prroperty is sold applies to have the sale set aside on his depositing the amount referred to in these provisions. The application is consequent to the deposit. Section 5 of the Limitation Act applies to limitation in appeals and applications but not to the act of deposit of money, which is the pre-condition for filing the application for setting aside the sale, for this reason too, Section 5 of Limitation Act has no application. 4. Objection under.- From Rule 285-H, it appears that only the owner of holding has right to prefer objection within 30 days of auction sale for setting aside sale and the Collector has power to set aside the sale. Further, a plain reading of Rule 285(1) shows that within aperiod of thirty days from the date of sale, application can be made to the Commissioner to set aside the sale on the ground of some material irregularity etc, since under Rle 285-H, 285(1), the objection can be made by any person before the Commissioner. Further, a plain reading of Rule 285(1) shows that within aperiod of thirty days from the date of sale, application can be made to the Commissioner to set aside the sale on the ground of some material irregularity etc, since under Rle 285-H, 285(1), the objection can be made by any person before the Commissioner. [ 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. SYNOPSIS 1. Alternative Remedy to approach Board of Revenue ….…………369 4. Nature and scope of ………..369 2. Maintainability of Revision….369 5. Order of Commissioner-shall be final …………………………370 3. Maintainability of special appeal...369 1. Alternative Remedy to approach Board of Revenue.- Where no request was made before the Trial Court by revisionist for issuance of a decree, nor any satisfactory reason was given for delay so caused, there was no justification to accept such request As findings of Courts below are concurrent, no jurisdictional error is committed, the revision fails for no grounds. 2. Maintainability of revision.- No revision could be filed before the Commissioner by a person who could make an application under Section 173 or 174 of the Act or under Rule 285-H or 285-I of the Act and Rules. Otherwise, the bar put by Section 175 of the Act and Rule 285-K of Rules, will become meaningless. 3. Maintainability of special appeal.- The Commissioner records findings after giving notice to parties and giving them opportunities of adducing oral and documentary evidence. The controversy is decided fairly and objectively on the basis of evidence adduced by parties. Such decision has to be consistent with principles of natural justice and general principle of law. 4. Nature and scope of.- While considering the provisions contained in Rule 285-I, the principle of the Golden or purposive rule of interpretation should be applied. It shall always not be possible for the farmers or persons belonging to lower cadre of society to approach the High Court under Article 226 of the Constitution. 4. Nature and scope of.- While considering the provisions contained in Rule 285-I, the principle of the Golden or purposive rule of interpretation should be applied. It shall always not be possible for the farmers or persons belonging to lower cadre of society to approach the High Court under Article 226 of the Constitution. Rule 285-I of the Rules, provides for filing an objection before the Commissioner. Therefore, the application filed before the Collector is not maintainable and it is open to the petitioner to approach the Commissioner. 5. Order of Commissioner- Shall be final.- The time limit given in Rule 285-I is 30 days from the date of sale. Admittedly, sale objection was filed beyond 30 days. It has also been mentioned in this Rule that s ale shall not be set aside on the ground of irregularity or mistake in publishing or conducting it unless, the applicant proves to the satisfaction of the Commissioner that he has sustained substantial injury by reason of such irregularity or mistake. Rule 285-I (iii) makes it clear that 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. Even order passed under this rule shall be final. 11. On perusal of the provisions contained under Rule 285-J, it is evident that on expiration of 30 days from the date of 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 and the order passed under the said Rules shall be final. Therefore, the Tehsildar, Sadar has committed manifest error of law in passing the order dated 20.12.1999 making mutation on the sale deed executed by the bank concealing the material fact to Shri Anjum Faroz. 12. The S.D.M., Sadar vide order dated 27.11.2000 set aside the order of Tehsildar considering the material on record and restored the name of the petitioner. 13. In support of the his submission, learned counsel for the petitioner placed reliance upon the judgment rendered in the case of Jagat Pal Singh (supra). Paragraphs 4 and 6 of the judgment is extracted hereinbelow: " 4. Learned counsel for the petitioner, learned Standing Counsel for opposite parties 1,2 and 3 and the learned counsel for opposite party no.6 have been heard. Learned counsel for the petitioner has argued that the property which was sold for realization of the amount by means of the auction dated 10.2.1976 was purchased by the petitioner. According to him the entire amount of the bid was deposited by the petitioner on 24.2.1976. Thereafter the Sub-Divisional Officer confirmed the auction by his order dated 19.3.1976, a copy of which is annexure-1 to the writ petition. A perusal of this order goes to show that the Sub-Divisional Officer while confirming the auction granted time till 25th March, 1976 to the objector to get the land released after depositing the amount due. It may be recalled at this stage that some objection was filed by Smt. Sursata Devi, opposite party no.4, before the Sub- Divisional Officer. Now the question which arises in the present case is as to whether the Sub-Divisional Officer had power under the provisions of the Zamindari Abolition and Land Reforms Act and the Rules framed thereunder to confirm the sale and whether he had also power to grant time for payment of the amount due to the objector simultaneously with the confirmation of the sale. Taking the second point at fist it may be stated that the sale was confirmed by the Sub- Divisional Officer. The authority confirming the sale cannot grant time to the objector to pay or deposit the amount for which the recovery proceedings were taken or for which the sale was held. In this connection certain provisions of the Rules framed under the Zamindari Abolition and Land Reforms Act have to be perused. The authority confirming the sale cannot grant time to the objector to pay or deposit the amount for which the recovery proceedings were taken or for which the sale was held. In this connection certain provisions of the Rules framed under the Zamindari Abolition and Land Reforms Act have to be perused. There are two provisions in the Zamindari Abolition and Land Reforms Rule, 1952 under which the attached property is sold, These are Section 284 and Section 286 of the Z.A. & L. R. Act. Rule 285 A 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. It goes to show that the sale under both the above sections 284 and 286 of the Zamindari Abolition and Land Reforms Act, is to be conducted by the Collector in person or by an Assistant Collector specially appointed by him in this behalf. Rule 285-C of the Zamindari Abolition and Land Reforms Rules, 1952 provides that if the defaulter pays the arrears in respect of which the land or other immovable property is to be sold, at any time before the day fixed for the sale, to the person authorized to collect the amount in arrears or to the person appointed under Rule 285-A to conduct the sale, the sale officer, on being satisfied of the payment, shall stay the sale. After the sale is held then the person who has purchased the property i.e. the auction purchaser shall have to deposit 25% of the amount of the bid forthwith and if that amount is not deposited then the sale is to take place again. This provision is made in Rule 285-D of the Zamindari Abolition and Land Reforms Rules. The entire amount of the purchase money is to be deposited within 15 days of the sale by the purchaser in the district treasury or sub-treasury and in case of default in deposit of the amount, the amount of 25% which was initially deposited at the fall of the hammer shall stand forfeited to Government and the property shall be re-sold . This provision is made under Rule 285-E of the Zaminidari Abolition and Land Reforms Rules. This provision is made under Rule 285-E of the Zaminidari Abolition and Land Reforms Rules. Rule 285-F of the above Rules further provides that if the proceed of the sale which is eventually made are less then the price bid by such defaulting purchaser then the difference shall be recoverable from him as if it were an arrear of the revenue. Thereafter the provisions of Rule 285-H are there to safeguard the interest of the person whose property has been sold. It 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, apply to have the sale set aside on his depositing in the Collector’s office the payment on account of the arrear, the amount specified in the proclamation in Z.A. Form 74, for the recovery of which the sale was ordered, the costs of the sale and a sum equal to 5 per cent of the purchase money, for payment to the purchaser, less any amount which might have been deposited. On making such deposits the Collector shall pass an order setting aside the sale. This provisions has been made in order to give a chance to the person whose immovable property has been sold to retain the same subject to the deposit of the amounts specified in this Rule. 5% amount of the auction money deposited by the person whose immovable property has been sold is to be paid to the auction purchaser in order to compensate him for the loss occurred to him. This Rule has a proviso attached to it which says that if a person applied under Rule 285-I to set aside such sale then he shall not be entitled to make an application under this Rule. 6. Rule 285-J of the Zamindari Abolition and Land Reforms Rules provides that after 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 of the U.P. Zamindari Abolition and Land Reforms Act. Section 154 of the above Act deals with restriction on transfer by a bhumidhar where the land exceeds as per limit fixed by this Section. Thus the Collector has no option but to confirm the sale on the expiry of 30 days if no objection has been made under Rule 285-H or Rule 285-I or if made but has been rejected by the Collector or the Commissioner and the Collector is duty bound to confirm the sale after satisfying himself that the provisions of Section 154 of the Zamindari Abolition and Land Reforms Act have not been contravened. Thus a perusal of this provision goes to show that the Collector has no power to grant time to the person whose property has been sold. The time which is fixed by the statute can be availed by the person whose property has been sold but cannot be extended by the Collector specially after the sale has been confirmed. Therefore the time granted by the Sub-Divisional Officer on 19.3.1976 to the person whose property has been sold, to deposit the amount, has no legal sanctity and, as such, has to be ignored." 14. On perusal of the paragraph 4 of the aforesaid judgment, it is transpired that after auction, the entire amount was deposited in pursuance to an auction. Thereafter, Sub-Divisional officer confirmed the auction by his order dated 19.3.1976 and thereafter sale was confirmed and after confirmation of sale, the Sub-Divisional Officer cannot grant time to the objector to pay or deposit the amount for which the recovery proceedings were taken or for which the sale was held. It was also considered that Rule 285-A 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. In the present case, the S.D.M. was specially appointed by the Collector to make auction of the property. 15. It has also been provide 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, apply to have the sale set aside on his depositing in the Collector’s office the payment on account of the arrear, the amount specified in the proclamation in Z.A. Form 74, for the recovery of which the sale was ordered. In the present case, for more than 30 days, no application nor deposit was made by the person whose land was auctioned. 16. In view of the provisions contained in Rule 285-H and Rule 285-I, the Collector has no option but to confirm the sale on expiry of 30 days, if no objection has been made under the aforesaid Rules. 17. In the present case, auction sale was confirmed by the S.D.M. who was authorized by the Commissioner for auction sale of the property, therefore no illegality whatsoever has been committed in confirming the auction sale made by the S.D.M. On deposit of money by the land holder of the property of the auction sale to the Bank, sale deed was executed which is nullified in the eyes of law and no reliance can be placed on the sale deed executed by the Bank and the order of the S.D.M. setting aside the order of mutation is just and valid. The Commissioner has committed gross illegality in passing the impugned order dated 28.8.2002 and has not been taken into consideration the provisions referred hereinabove and the judgment relied upon by the learned counsel for the petitioner. 18. Considering in totality of facts and circumstances of the case, the writ petition succeeds and is hereby allowed. Impugned judgment and order dated 28.08.2002 passed by the Additional Commissioner (Judicial), Faizabad Division , Faizabad (Opposite party no.2 in Revision No.5583, contained in Annexure-27 to the writ petition) and order dated 20.12.1999 passed by the Additional/ Naib Tehsildar rejecting the application of the petitioner for mutation, contained in Annexure-20 and order dated 21.12.1999 passed by the Additional/ Naib Tehsildar are set aside. 19. However, the S.D.M., Sadar, Sultanpur is directed to hand over the possession of Plot No.1025 Area 0-8-0, Plot No.1344 Area 0-3-10 and Plot No.961 Area 0-2-5 situated at Village Katka Khanpur, Tehsil Sadar, District Sultanpur after granting mutation on the basis of confirmation of sale in view of above-referred provisions to the petitioner within a period of four weeks from the date of production of a certified copy of this order.