HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 09.05.2011 Judgement delivered on 29.09.2011 In Chamber Case :- WRIT - C No. - 6437 of 1991 Petitioner :- Shiv Narain Dubey Respondent :- State of U.P. and others Petitioner Counsel :- A.B. Singh Respondent Counsel :- S.C.,Amit Kumar Srivastava,R.C.Singh,Virendra Singh Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the parties.
Petitioner took some loan from U.P. State Sahkari Agricultural Evam Gram Vikas Bank Limited, Salempur, Deoria, which he did not repay, hence his agricultural land bearing plot no.141 having area of 0.53 acre was auctioned on 18.08.1989 for realization of the dues. Against the auction, original petitioner preferred objection under Rule 285-I of U.P. Zamindari Abolition and Land Reforms Rules, which was rejected by Commissioner Gorakhpur, Division Gorakhpur on 07.01.1991. On the same date auction was confirmed. Original respondent no.4 Kedar Nath Dubey was auction purchaser. Both original petitioner and original respondent no.4 have died and have been substituted by their legal representatives.
The writ petition was earlier allowed on 14.07.2004 on the ground that the sale conducted by the Sub Divisional Officer was not valid for want of approval of the Collector.
Under Section 3(4) of U.P.Z.A. & L.R. Act, Collector is defined, according to which 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 the Collector under the Act. On 11.06.1953 State Government issued a notification empowering all the Assistant Collectors to perform all the duties of Collector. However, on 17.01.1976 State Government issued following notification:
"No.1/1/76(III)(6)-Rajaswa-7 January 17, 1976 In exercise of the powers under clause (4) of section 3 of the U.P. 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."
Assistant Collector Ist Class who is in-charge of the Sub Division is S.D.O. as defined under Section 18 of U.P. Land Revenue Act, 1901.
Against the judgment and order dated 14.07.2004 through which writ petition was allowed, auction purchaser approached the Supreme Court. The Supreme Court set aside the said judgment through judgment reported in Kedar Nath Debey Vs. Sheo Naraion Dubey JT 2005 (5) SC 467. However, the Supreme Court clarified that it was not expressing any final opinion and matter was remitted to the High Court to decide the same afresh.
Accordingly, this matter came up for hearing and was heard by me in detail on 09.05.2011 and judgment was reserved.
This point has been considered in a Division Bench authority of this Court reported in Ram Awadh Tiwari Vs. Sudarshan Tiwari, 2008 (6) ADJ 776 (DB). In the said judgment, the judgement of the Supreme Court given in this case has been considered in detail. Ultimately, the Division Bench has held that in view of the notification dated 17.01.1976 S.D.O. can conduct the auction but it shall be approved by the Collector.
However, through notification dated 30.05.1981 published in U.P. Gazette dated 29.08.1981. It was provided as under:-
"No.U.O.-592/1-7-80-Rev-7 May 30, 1981 In exercise of the power under clause(4) of section 3 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act no.1 of 1951) read with Section 21 of the U.P. General Clauses Act, 1904 (U.P. Act no.1 of 1904) the Governor is pleased to rescind the notification no.1/1/76(3) (6)-Rajaswa-7, dated January 17, 1976 empowering all Assistant Collector of First Class, Incharge of the Sub Division to discharge the function of a "Collector" under Section 286 of the aforesaid act."
Thereafter, Government Order was issued on 10.08.1981 No.73/14(2)/1980-Ra-1 to all the District Magistrates of U.P. clarifying the position and mentioning therein that in view of different notifications, all the S.D.Os. were empowered to conduct the auction sale etc., under Section 284 and 286 of U.P. Z.A. & L.R. Act. The G.O. dated 10.08.1981 was issued on behalf of the Governor by Deputy Secretary, Government of U.P. The effect of rescinding the notification dated 17.01.1976 is that the position as governed by initial G.O. dated 11.06.1953 as modified by notification dated 05.12.1968 (prohibiting the S.D.O. to hear the cases under Section 198(4) U.P. Z.A. & L.R. Act) stood revived. It was to clarify this position that Secretary, Board of Revenue issued circular to all the District Magistrates on 07.07.1983 mentioning therein the G.O. dated 10.08.1981.
In the Division Bench authority of Ram Awadh Tiwari notification dated 30.05.1981 and G.O. dated 10.08.1981 have not been considered as these were not placed. The notification dated 17.01.1976 is no more in existence. There is no impediment now on the power of the S.D.O. to hold the auction and confirm the sale. The Division Bench authority of Ram Awadh Tiwari is per in curium as it is based on non existent notification dated 17.01.1976 and has not taken into consideration the subsequent notification dated 30.05.1981 through which notification dated 17.01.1976 was rescinded. No other argument has been raised by the learned counsel for the petitioner.
Accordingly, writ petition is dismissed.
Order Date :- 29.09.2011 NLY