Farughul Hasan & Others vs State Of U.P.& Others
2012 Latest Caselaw 949 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

					Judgment reserved on 19.3.2012						Judgment delivered on 27.4.2012
 

 
CIVIL MISC. WRIT PETITION NO. 44953 OF 2000
 
              Farughul Hasan & others vs. State of UP and others
 

 
Hon'ble Sunil Ambwani, J.

Hon'ble Pankaj Naqvi, J.

1. We have heard Shri B.R. Singh, learned counsel appearing for the petitioners. Learned Standing Counsel appears for the State respondents. Shri K.K. Shangloo appears for the respondent no.5-the auction purchaser.

2. The petitioners have prayed for quashing the recovery certificate; the auction sale dated 22.6.1972; the confirmation dated 11.5.1973 of House No. 66 Sailani, Bareilly. The petitioners have also prayed for setting aside the judgment and order dated 6.1.1986 in Original Suit No. 255 of 1974, passed by the IInd Additional Civil Judge, Bareilly, and the judgement and order dated 21.9.2000 in Civil Appeal No. 10 of 1986 passed by the VIIth Additional District Judge, Bareilly. They have also prayed for a writ of mandamus directing the respondents not to interfere in their peaceful possession over house No. 66 Mohalla Sailani, Bareilly.

3. Brief facts, giving rise to this writ petition, are that a recovery citation of Rs. 14, 077.27 was issued in the year 1971/1972 for recovery of sales tax dues against Mehboob Husain, Mohammad Siddique and Mohammad Shabbir, carrying on business in the name of M/s Mehboob Husain & Co.; M/s Mohd. Siddique & Mohd. Shabbir and M/s K.B. Brick Works. Shri Mehboob Husain and Shri Mohammad Siddique were partners in M/s Mehboob Husain & Co. Shri Mohammad Siddique and Shri Mohammad Shabbir were partners in the firm of M/s Mohd. Siddique & Mohd. Shabbir and Shri Mohammad Shabbir was the proprietor of the firm M/s K.B. Brick Works, which had defaulted in payment of sales tax.

4. The Sales Tax Department issued a recovery certificate through the Collector, Bareilly for recovering the sales tax dues against the aforesaid three firms. The Collector, Bareilly issued warrant of arrest against Shri Mohammad Husain, which was returned with the report that Mohammad Husain had died in November, 1970, and accordingly the proceedings of his arrest was dropped. His House No.66/B-3, Mohalla Sailani, Bareilly was attached vide attachment order dated 19.2.1972. The house was advertised for auction by the Sub Divisional Officer. He carried out the proceedings for sale in his Court room on 22.6.1972 in which the bid of Shri Tauquir Hussain (auction purchaser)-respondent no.5, was accepted. The sale was confirmed on 29.7.1972.

5. Shri Mahmoodul Hasan, son of late Mahboob Husain-father of petitioners no.1 to 7, and his widow petitioner no. 8, filed objections to the sale on 27.6.1972 alleging that the attachment memo was prepared by the Amin giving the number of the house as 66, but in the boundaries, house No. 65 was also included. The boundaries of both the houses were wrongly given in the memo. In the southern boundaries there is a house of Mohd. Yasin Akbar and thereafter Gali. The consolidated boundary was prepared by the Amin. The boundary of house No. 66, which was proposed to be sold, was incorrect, and was given as East-house of Sri Ashfaq Ahmad, M.L.A.; West- Rasta; North-house No. 65 belonging to S/s Mohd. Siddique & Mohd. Shabbir sons of Haji Mehboob Hussain, and South-house of Nisar Ahmad. It was further alleged in the objections, that the sale proclamation was not issued 30 days before the sale, nor was affixed on the property sought to be sold. The sale alleged to be conducted in Court house, never took place. There was no occasion nor any specific order or ground for not selling the property at the site, and thus the prospective bidders could not assemble for offering bids. The bids disclosed in the bid sheet were collusive. The Amin had developed bad relations and ill-will with the other sons of Haji Mahboob Husain and thus the bids were fraudulently recorded. The purchaser was a person favourite to the Amin. The persons, who were present in the Court of the S.D.O., Bareilly on 22.6.1972, informed the objector that they did not find any bid invitation or any jalsa (assembly) for sale in the Court at 4.00 p.m. The S.D.O. concerned was also not present till that time. The sale was fictitious and irregular. It was further submitted that no Munadi was ever made at the spot or at any other place for any bidder collected. The notice under Order XXI Rule 66 C.P.C. was never issued or served against any person prior to the sale. Haji Mahboob Hussain died in November, 1970. His heirs were not brought on record. The entire proceedings were taken against the dead person. The value of house no. 66 is much more than Rs. 16, 000/- and the value of properties nos. 65 and 66 is much more than Rs. 16, 000/-. The consolidated value of both the houses is not less than Rs. 60, 000/-.

6. In paragraph-5 of the objections, it was submitted that the objector is the sole owner by oral gift of house no. 66, which was gifted away by late Haji Mahboob Husain to the objector in 1958. The objector got it constructed from his own material and funds. The objector is separate from his other brothers both in business and residence and was not partner of the firm Mahboob Husain & Company, and therefore, his house was not liable to be sold. He had also filed Suit No. 522 of 1958 in the Court of Munsif City, Bareilly as exclusive owner of house no. 66, in the life time and to the knowledge of his father and other brothers.

7. The Commissioner, Rohelkhand Division, Bareilly considered the objections as Objection No. 43/1972 under Rule 285 (1) of the U.P. Zamindari Abolition & Land Reforms Rules, 1951 (for short, the Rules). The objections were rejected on 11.5.1973 on the ground that the provisions of Rule 279 and Rule 281 of the Rules are applicable only to agricultural holdings. The proclamation of sale, as is clear from the records, was made on 22.6.1972, and was signed by the Collector. The sale took place after a period of one month on 22.6.1972. The report of a peon dated 21.6.1972 does not show that the proclamation was made on that date. The proclamation was issued on 12.5.1972, and was signed by the Collector on that very day. The proceedings of sale (Fard Nilam) were available on record. The Commissioner also considered the objections that the sale was held against the dead person. The objections in this regard could only be filed by the sons and heirs of Shri Mahboob Husain. The proceedings of sale were made after pasting the sale proclamation on the house (paper nos. 13, 14). The current owners of the house could have raised objections. They did not make any objections to the sale. The Commissioner found that there was no illegality or error in the same nor there was any such thing, which could show that the objectors have suffered irreparable loss. The objectors have tried to prove that the property belonged to them since 1958, and for that purpose they produced a copy of the affidavit in a case. The affidavit does not prove that the house belonged to them or to their father. The sale was confirmed by the Sub Divisional Magistrate on 29.7.1972. The sale confirmation was within the authority of the Sub Divisional Magistrate. The Commissioner approved the proceeding of sale by his order dated 11.5.1973.

8. Late Mahmoodul Hasan-the objector did not challenge the order of the Commissioner in revision in the Board of Revenue, or by filing any writ petition. He filed Original Suit No. 255 of 1974 for declaration that the sale of house no. 66 was void and inoperative, on the grounds on which he had filed objections against the same. The suit was dismissed after contest on merits by the judgment dated 6.1.1986 passed by Shri G.C. Pant, Additional Civil Judge-II, Bareilly. The Civil Judge framed nine issues including the issues namely (1) whether the plaintiff is the owner of the house; (2) whether the sale of the house on the grounds stated in the plaint is illegal and operative; (3) effect of the statement in para-16 of the suit; (4) whether the value of the suit is less and the court fees paid is insufficient. The trial court also framed issue no. 7 as to whether the suit is barred under Section 17 of the U.P. Sales Tax Act, and Section 3 (5) of the U.P. Public Money (Recovery of Dues) Act, 1972. The questions of limitation and bar of Section 80 CPC were also framed as separate issues.

9. On issue no. 1, regarding ownership of the house, the trial court held that the alleged oral gift made by late Haji Mehboob Husain in 1952 in favour of late Mahmoodul Hasan was not proved. Shri Mehmoodul Hasan-PW-1 had stated that late Haji Mahboob Husain had made oral gift of the house in his favour on 17.1.1952. This statement was not supported by any other witness to prove the gift. The trial court found the statement of Mehmoodul Hasan-PW-1 to be doubtful and not worthy of belief inasmuch as he had admitted that from 1947 to 1956 the relationship between late Haji Mehboob Husain with his father was not good, and that even after returning from Pakistan, the relationship did not improve. The document no. 13G/4, which is a copy of the affidavit signed by the persons affirming it giving the date of 19.3.1952, under his signatures, whereas the Advocate, who had identified the thumb impression had signed it on 24.3.1953. The date is given under his signatures. The document also does not clearly describe the property, which was stated to be gifted. Another document no. 12-Ga/2 is a plaint of Suit No. 522 of 1958 in which it is stated that the owner of the house is Shri Mehmoodul Hasan. The suit was filed against Nisar Ahmad in 1958. This document also did not support the plaintiff inasmuch as it does not contain any recital about the earlier gift. This suit was dismissed, which also made the story of gift doubtful. The trial court also believed upon the fact that the permission to construct house taken by Haji Mehmood Husain in 1958. This permission taken by Haji Mehboob Husain was against the pleading that the house was gifted by him to Shri Mehmoodul Hasan.

10. On the question of validity of sale, the trial court found that for recovery of sales tax dues against Haji Mehmoob Husain, who was engaged in the business of brick kiln, the house was attached in 1972. Haji Mehboob Husain died in November, 1970. Late Mehmoodul Hasan-the plaintiff's father had filed objections against the sale before the Commissioner. He had admitted in his examination-in-chief as PW-1 that on the date, when the proceedings of auction were held, he was present in the Court of Sub Divisional Magistrate. Since he was present at the time of sale and has made objections before the Commissioner, which were rejected, he could not have challenged the sale by filing a suit. The trial court found that the sale under Section 175 of the UP Land Revenue Act could be challenged only on the ground of fraud. Since Shri Mehmoodul Hasan was present at the time of sale and had filed objections, which were dismissed and in his objections all his pleas were rejected, he did not have any right to challenge the sale as void and inoperative. The suit was consequently dismissed.

11. Shri Mehmoodul Hasan and seven others as heirs of late Mehmoodul Hasan filed a Civil Appeal No. 10 of 1986 against the judgment of the trial court. The appeal was dismissed with costs on 21.9.2000. The appellate court confirmed the findings recorded by the trial court, discussed the issues regarding the ownership of the property and the validity of the sale and returned findings against the plaintiff. On the question of title the appellate court held that the theory of earlier gift was rightly disbelieved by the trial court on the ground that if the earlier gift was made on 17.1.1952, the statement of earlier gift in the objections to the sale made in 1958, was incorrect. If Mehmoodul Hasan gifted out the property in the year 1952, there was no question to gift it again in the year 1958. It had come in evidence that the relationship between the alleged donor and donee were not good from 1952 to 1956. He had gone to Pakistan in that period and after coming back from Pakistan, he had constructed the house over the southern portion of the plot. The map was sanctioned in the name of Mehboob Husain. The alleged gift was not acted upon as the name of Mehmoodul Hasan was not mutated in the municipality. Mohd. Shabbir-defendant no. 4-the brother of Mahmoodul Hasan had stated in his written statement that house no. 66 was never gifted to Mehboob Husain and that all the sons are co-owners of the house. In the affidavit of the mother of the deceased plaintiff Mehmoodul Hasan, the dates given under the signature of the deponent and the counsel are different, whereas the date under the signature of deponent is 19.3.1952, the date under the signature of Advocate, who had identified him is 24.3.1953. The plan for construction was got sanctioned by Shri Mehboob Husain.

12. With regard to the findings on proceedings of sale for recovering the sales tax dues, the appellate court found that the property was auctioned and sold on 22.6.1972, which was confirmed on 28.7.1972 and the possession was delivered on 9.7.1976. The appellate court did not agree with the submissions that the proceedings of attachment and sale were illegal and void. The attachment for sale was proved to have taken place in the year 1972. The objections filed before the Commissioner were rejected. The deceased plaintiff had stated that he was present at the time of auction sale. The appellate court also found that after rejection of the objections, the objector had opportunity to challenge the proceedings before the High Court, but they did not challenge the orders.

13. The appellate court thereafter found that no ground of fraud has been pleaded in the plaint, nor any particulars of fraud were given to challenge the proceedings of sale. The auction sale was confirmed and that the objections were dismissed. The auction could only be set aside, if any fraud was played in the proceedings. There were no pleading nor any evidence was led to prove that any fraud took place in the proceedings of sale. The procedural errors, if any, committed by the revenue authorities would not vitiate the sale.

14. It is submitted by learned counsel appearing for the petitioners that the property, which did not belong to late Mehboob Husain, was sold in auction for realisation of the sales tax dues. It is stated in paragraph-4, that late Mehbood Husain purchased two plots vide sale deeds dated 11.12.1945 and 15.5.1946. He orally gifted two plots to his eldest son Mehmoodul Hasan on 17.1.1952, who had accepted the gift and received the possession. Mehmoodul Hasan also got the plan sanctioned from Municipal Board, Bareilly in the year 1959 and got constructed the house, which was numbered in the Municipal Board, Bareilly as house no. 66, Mohalla Sailani, Bareilly. Both the houses are adjacent but are independent and are separately assessed for house tax and water tax. In the attachment order the house number was given as house no. 66, Mohalla Sailani, Bareilly. The boundaries were given in the attachment order. It is stated in paragraphs 15 to 18 that two houses are separate with separate boundaries and since only one house was attached, the sale of house no. 66 was wrongly held and confirmed.

15. Learned counsel appearing for the petitioner has relied upon the process for recovery of revenue under Section 146 of the U.P. Land Revenue Act, 1901, and the procedure for issuing writ of demand and citation under Section 147. It is stated that the procedure was not followed and that instead of the property of defaulter, the property of petitioners' father, which was gifted to him, and was separately recorded in the municipal records, was sold. In Misc. Civil Appeal No. 379 of 1975, the District Judge invited a commissioner's report by his order dated 2.2.1976. The Advocate Commissioner in his report dated 25.3.1976 has clearly given the boundaries of both the houses as disclosed in the writ petition. The Misc. Appeal No. 379 of 1975 against the order of interim injunction was allowed. The Original Suit was thereafter dismissed and regular appeal was also dismissed.

16. In paragraph-38 of the writ petition, it is stated that the petitioners were advised that they should challenge the auction sale dated 22.6.1972 and the confirmation dated 11.5.1973 only with regard to house no. 66 by filing a writ petition under Article 226/227 of the Constitution of India. It is submitted that on the facts stated and proved by the documents on record the Court must declare the sale of house no. 66 in which petitioners' family is living and which is still in possession of the petitioners as null and void. The orders of sale, confirmation of sale, as well as the order rejecting the objections and the decree in suit and appeal are liable to be set aside by this Court.

17. Learned counsel appearing for the petitioners has relied upon the judgments of this Court in M/s Swadeshi Polytex Limited vs. Board of Revenue, U.P. And others 2006 (24) LCD 1; Noor Ahmad vs. Board of Revenue, U.P. 2006 (4) AWC 3190; State of UP and others vs. M/s Swadeshi Polytex Ltd and others 2009 (107) RD 22 and Baldeo alias Balev and others vs. State of UP and others 2011 (114) RD 690. It is submitted that in M/s Swadeshi Polytex Limited vs. Board of Revenue(supra) the judgment of learned Single Judge setting aside the auction sale was confirmed by the Division Bench. He relies upon the judgment on the ground that the auction sale was conducted at Meerut and completed at 1.30 pm. The deposit of 25% amount on the same day by a bank draft, which was prepared at Kanpur 460 kms away was not possible. The order of attachment was served on the peon and not on any officer of the company. In the valuation only the vacant land was valued and not the entire property. The publication in newspapers was made on 22.4.2005 and the sale was made before expiry of the period of one month on 2.5.2005.

18. In Noor Ahmad vs. Board of Revenue (supra) this Court held that the proceedings before the Commissioner under Rule 285-I of U.P. Zamindari Abolition and Land Reforms Rules, 1952 and the Board of Revenue in revision are judicial proceedings. When specific ground of objection is taken that the auction took place without publication and notice, the orders of the Commissioner without recording any reasons and confirmed by Board of Revenue was liable to be set aside. In Baldeo alias Baldev vs. State of UP (supra) this Court held that where valuation was made for Rs.60,000/- and the auction was actually settled for Rs. 2, 60, 000/-, the market value was not properly determined. It was also held that the word "Collector" in Section 3 (4) of the Land Revenue Act includes an Assistant Collector of the first class. The Collector or the Assistant Collector could not have delegated the powers to the Naib Tahsildar to hold the auction and the sale proceedings under Rule 285-A of the UP ZA & LR Rules, 1952. The sale proceedings held by Naib Tehsildar were found to be illegal. He had no authority to conduct the sale which was consequently set aside.

19. Shri K.K. Shangloo, learned counsel appearing for the auction purchaser submits that objections were filed against the sale by late Mahmoodul Hasan, who claimed the property through his father on the basis of oral gift by late Mehboob Husain. The objections were dismissed on merit by the Commissioner in proceedings under Rule 285-I of the UP ZA & LR Rules, 1952. The petitioners did not challenge the order in revision or file any writ petition against the order of the Commissioner dated 11.5.1973. They could not have challenged the sale thereafter except on the ground of fraud for which they filed the Original Suit No. 255 of 1973. Initially the injunction was not granted. The District Judge, however, granted temporary injunction in appeal on 1.6.1976 only on the ground that a fair question was raised to be decided in the suit which was also required to be examined after examining the documentary evidence. The suit, however, was subsequently dismissed with the specific findings that the oral gift was not proved. Shri Mehmoodul Hasan was present at the time of auction. His objections were dismissed by the Commissioner, and that there was no fraud established on record in the proceedings of sale. The judgment dated 6.1.1986 was confirmed in Civil Appeal No. 10 of 1986 on merits. The appellate authority discussed each issue all over again and confirmed the findings that the oral gift was not proved and there was no illegality and irregularity in the sale much less the fraud as alleged by the plaintiff. The petitioners did not file a Second Appeal against the judgment dated 21.9.2000 in Civil Appeal No. 10 of 1986 confirming the findings of the trial court in its judgment dated 6.1.1986. The judgments have become final and cannot be challenged in writ petition under Article 226 of the Constitution of India or under Article 227 of the Constitution of India. The judgments have been rendered by the court of competent jurisdiction. The trial court and the appellate court did not lack jurisdiction nor they acted beyond the jurisdiction vested in them to allow the petitioners to give up the remedy of filing the second appeal under Section 100 of the CPC and to file a Civil Suit challenging the auction as well as the judgments of the Civil Court, which have become final and are operative as res judicata between the parties.

20. Shri K.K. Shangloo has relied upon Division Bench judgments of this Court in Smt. Deepak Bhalla vs. State of UP & others 1992 U.P.T.C. 41; Dinesh Chandra Rastogi vs. State of UP and others 2001 (42) ALR 130 and Ganpatibai vs. State of M.P. 2006 (7) SCC 508. In Smt. Deepak Bhalla vs. State of UP (supra) a Division Bench of this Court held that Section 17 of the U.P. Sales Tax Act creates a complete bar as the assessment made under the Act cannot be called in question in any Court. The tax assessments and the amount under recovery had, therefore, become final. In Dinesh Chandra Rastogi vs. State of UP and others (supra) a Division Bench of this Court upheld the auction for recovery of the arrears of sales tax and directed the Sub Divisional Magistrate and the Tahsildar to deliver the peaceful possession of the house to the petitioner.

21. In Ganpatibai vs. State of Madhya Pradesh (supra) decided by the Supreme Court is not applicable to the facts of the case inasmuch as in the said case it was held that a civil suit was not maintainable to challenge the notification under Sections 4 and 6 of the Land Acquisition Act. In the present case, we are not dealing with the proceedings of the land acquisition or the proceedings undertaken under the U.P. Sales Tax Act.

22. We have considered respective submissions and examined the documents on record. The trial court recorded findings in the suit in which the sale was challenged on the grounds that the property did not belong to the defaulter as it was gifted to the objectors' father and that the sale was void and inoperative as it was fraudulent, that Shri Mahmoodul Hasan-the plaintiffs' father could not prove the oral gift in favour of his father. The Civil Court after taking the evidence referred to his statement in examination-in-chief that he was present at the time of proceedings of sale, which was held in the Court of Sub Divisional Magistrate, Bareilly. He had filed objections, which were dismissed on merits by the Commissioner of the Division, and thereafter did not succeed in the suit. He, however, gave up the proceedings in which he filed objections against the sale, which were rejected by the Commissioner by not filing a revision or a writ petition against the order. Having filed the suit, which was dismissed and the appeal, which was also dismissed confirming the findings in which neither the oral gift was proved nor any fraud was established, his heirs-the petitioners in this writ petition, are not entitled to challenge the judgment and decree in a writ petition.

23. The facts, stated in the writ petition, in which the petitioners have set up a pedigree, and have thereafter pleaded in detailed with regard to the boundaries of the house and the attachment order, were not pleaded either in the objections before the Commissioner, after the sale was made on 22.6.1972 or in the plaint of the Suit No. 255 of 1974. The description of the property, the boundaries, the allotment of separate house numbers was not given in the objections or in the suit. The plea of oral gift and the fraud in conducting the sale was not established. The findings recorded by the Commissioner in his order rejecting the orders on 11.5.1973 have become final. The judgment in Civil Appeal No. 10 of 1986 confirming the findings of the original suit has also become final and operates as res judicata between the parties, who were contesting the proceedings.

24. We do not find any good ground to interfere with the proceedings of sale, which have been confirmed and the objections against which have been dismissed. The Original Suit No. 255 of 1974 and Civil Appeal No. 10 of 1986 against the sale were also dismissed.

25. On 18.10.2000, while admitting the writ petition, this Court found that the auction purchaser was not given possession of the entire house. A portion of the house described by the petitioners as house No. 66 in Mohalla Sailani, District Bareilly was in possession of the plaintiff in pursuance to the interim injunction order passed by the appellate court on 1.6.1976. The Court thus passed an order directing that on the deposit of a sum of Rs. 2, 50,000/- with the respondent no. 1-A-the Assessing Authority, Sales Tax, Bareilly within a period of three months, the order of attachment of house no. 66, Mohalla Doilani, Bareilly shall remain in abeyance. The order was to be effective only if the amount is deposited.

26. This Court at the time of granting interim order was under impression that house no. 66, Mohalla Shailani, Bareilly is under attachment, and allowed petitioners to occupy the house, if the amount of Rs. 2, 50, 000/- is deposited with the Sales Tax Department. It appears that the Court did not appreciate that the entire house was sold, against which objections were dismissed by the Commissioner and that the suit challenging the sale on the ground of fraud and the appeal against the judgement was also dismissed.

27. The amount of Rs. 2, 50, 000/- has been deposited by the plaintiff for which they have filed supplementary affidavit giving the dates of deposit. Seven petitioners have deposited different amounts separately, totalling Rs. 2, 50, 000/- between 9.1.2001 and 12.1.2001.

28. Since the aforesaid amount of Rs. 2, 50, 000/- was deposited in terms of the interim order passed by the Court in respect of the portion of the house of which the possession has not been handed over to the auction purchaser since 22.6.1972, when the bid of Rs. 16, 000/- was accepted and the amount was deposited, we find it appropriate to adjust the equities by issuing directions to appropriate the amount.

29. The petitioners have been in possession of the portion of the property sold to the auction purchaser for last 40 years. If we calculate the mesne profit of the portion for use and occupation for 40 years at the average rate of Rs. 500/- per month, and interest, the amount would come to about Rs. 2, 50, 000/-. We, therefore, direct that the entire amount deposited along with the interest will be released and handed over to Shri Tauquir Hussain-the auction purchaser-respondent no.5. The Assessing Authority, Sales Tax, Bareilly, with whom the amount is deposited, shall release the entire amount in favour of Shri Tauquir Hussain-respondent no. 5, within a period of two months of his making application for release of the amount.

30. The writ petition is dismissed.

Dt.27.4.2012

RKP/