Ishtiaq Ahmad vs The State Of U.P. And Others
2012 Latest Caselaw 2271 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										    AFR
 
										Reserved
 
	Civil Misc. Writ Petition No. 31478 of 2011.
 
Ishtiaq Ahmad.						 ........  Petitioner.
 
					Versus
 
The State of Uttar Pradesh and others.	  .......  Respondents.
 
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Present:

Hon. Mr. Justice Amitava Lala, &

Hon. Mr. Justice Pradeep Kumar Singh Baghel.

Appearance:

For the Petitioner : Mr. Anil Kumar Aditya.

For the Respondents : Mr. Ravi Shanker Prasad,

Addl. Chief Standing Counsel,

Mr. Ramanand Pandey, &

Mrs. Subhash Rathi,

Standing Counsel.

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Amitava Lala, J.-- In this writ petition, the petitioner, who is an auction purchaser, has challenged the order dated 18th May, 2011 passed by the District Magistrate, Saharanpur, respondent no. 2 herein, whereby he has cancelled the auction held on 18th April, 2011 in respect of Khair trees and directed for holding a fresh auction in accordance with law. The petitioner has further prayed for a direction upon the respondents to grant permission to the petitioner for felling of trees, after permitting the petitioner to deposit the remaining bid amount.

Petitioner's case is that Gram Panchayat Mahmudpur, Tehsil Behat, District Saharanpur while considering a proposal to give the land of Plot No. 3/6 situated in Revenue Village Sherullahpur of such Gram Panchayat to the State Government free of cost for establishment of Sports College, also considered to sell the Khair trees standing on the said land by public auction to utilize the money received for development of the village. Resolution to the said effect was taken by the Gram Panchayat on 05th November, 2008. On 28th December, 2010 the concerned Block Development Officer had informed the Divisional Director, Social Forestry Division, Saharanpur about such resolution and for permission and necessary action, when on 21st March, 2011 such Divisional Director wrote to the District Magistrate, Saharanpur requiring information whether ownership of the trees standing on the said land are lying with the Gaon Sabha or with the Sports Department. In response to such query, on 01st April, 2011 the District Magistrate, Saharanpur informed that the trees belong to Gaon Sabha. Thereafter, on the basis of spot inspection done by the Sub-Divisional Forest Officer, the Divisional Director informed the Block Development Officer by its letter dated 11th April, 2011 that number of trees standing on the land in question is 2693 and estimated value thereof is Rs.44,10,900/-. Subsequent thereto, on 13th April, 2011 the Block Development Officer granted permission to the Pradhan of the Gram Panchayat to auction the trees on certain terms and conditions. According to the petitioner, as per Rule 115-S of the Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter in short called as the ''Rules, 1952'), the Gaon Sabha got the advertisement and publication of auction done in the circle of the Gaon Sabha by beats of drum giving description of the property to be auctioned. As per statutory requirement, steps were taken for publication of auction notice in the newspapers "Dainik Jagran" and "Amar Ujala". Necessary announcement of notice was also made by mike of local mosque etc. One of the conditions of such auction was regarding deposit of Rs. 4 lacs by each of the participants. Accordingly, auction was held on 18th April, 2011, wherein 18 persons participated. The petitioner had fulfilled the conditions and the petitioner's bid of Rs.44,21,000/- was declared as the highest bid by the auctioning authority. As per the condition, the petitioner immediately deposited Rs. 11,05,250/-, being 1/4th of the auction amount, and obtained a receipt. Therefore, auction became final in favour of the petitioner. However, between 19th to 25th April, 2011 some persons, not being residents of the concerned village, made a complaint to the Chief Minister, Government of Uttar Pradesh and upon being forwarded, the complaint was entertained by the Minister, Basic Education, who directed the Additional Commissioner, Saharanpur Division, Saharanpur to get an enquire done into the matter and take necessary action. On 01st May, 2011 the petitioner wrote a letter to the Block Development Officer with regard to deposit of the balance amount and for granting permission to fell the trees and further requested that the trees should be protected in order to secure them from being felled illegally by some other persons. However, on 18th May, 2011 without giving any show cause notice or opportunity of hearing to the petitioner, the District Magistrate, Saharanpur has passed the impugned order, thereby cancelling the auction. Against such background, the petitioner has filed the present writ petition.

According to the petitioner, the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter in short called as the ''Act, 1950') read with the Rules, 1952 is a complete code. Rule 115-S of the Rules, 1952 is not only prescribing the procedure for holding auction but also manner in which the objection, if any, is to be considered with regard to public auction.

From Rule 115-S(1)(iii) of the Rules, 1952 we find that the auction shall be closed in favour of the highest bidder and shall become final--(a) where no objections are filed--on the expiry of forty-two days from the date of auction; and (b) where any objection is filed--on the auction being confirmed by the Tahsildar or the Collector after the disposal of objection or the appeal, as the case may be. Sub-rule (iv) of such Rule provides for filing objection against an auction. So far as objections are concerned, we find from such rule that initially it will be considered by the Tahsildar and upon being aggrieved from the decision of the Tahsildar, the person concerned can prefer an appeal, within a period of fifteen days from the date of order, to the Collector and decision of the appeal shall be final and conclusive and shall not be questioned in any Court of law. However, in the present case, we do not find that any appeal has been filed by the petitioner before the Collector.

Petitioner's case is that no order shall be passed for setting aside the auction without providing any opportunity of hearing to the person concerned. In the present case, under the forged signature of some persons complaint has been made to the Chief Minister, when it was referred to the Minister of Basic Education, who passed the order thereon directing the concerned Commissioner to get an enquiry done and to take action. On the direction of the Minister, the Commissioner constituted a five members Committee. Such Committee was consisting of District Development Officer, Saharanpur, Executive Engineer, Rural Engineering Service, Saharanpur, District Panchayat Raj Officer, Saharanpur, Financial Advisor, Zila Panchayat, Saharanpur and Additional Chief Officer, Zila Panchayat, Saharanpur, as is apparent from Annexure-1 to the counter affidavit. However, the Committee did not issue any notice to the petitioner and behind his back submitted incorrect report dated 04th May, 2011, on the basis of which the impugned order has been passed by the District Magistrate under the Uttar Pradesh Protection of Trees in Rural and Hill Areas Act, 1976 (hereinafter in short called as the ''Act, 1976'). Mr. Anil Kumar Aditya, learned Counsel appearing for the petitioner has contended that when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention thereto. In other words, if statute permits to do something in one way, the same must be done in that way or not at all. The other methods or modes of performance are impliedly or expressly forbidden. He further said that maxim expressio unius est exclusion alterius is clearly applicable in this case. In support of his contention, Mr. Aditya has relied upon the judgements reported in 1876 (1) Ch. D. 426 (Taylor Vs. Taylor), AIR 1936 PC 253 (Nazir Ahmad Vs. King Emperor), 1995 (1) SCC 156 (State of Mizoram Vs. Biakchhawna), AIR 1961 SC 1527 (Deep Chand Vs. State of Rajasthan), AIR 1996 SC 2520 (J.N. Ganatra Vs. Morvi Municipality, Morvi), 1999 (3) SCC 422 (Babu Verghese and others Vs. Bar Council of Kerala and others), 1999 (8) SCC 266 : JT 1999 (7) SC 256 (Chandra Kishore Jha Vs. Mahavir Prasad and others), 2000 (6) SCC 179 (Haresh Dayaram Thakur Vs. State of Maharashtra and others), 2000 (7) SCC 296 (Delhi Administration Vs. Gurdip Singh Uban and others), 2001 (4) SCC 9 (Dhanajaya Reddy Vs. State of Karnataka etc. etc.), 2002 (1) SCC 633 (Commissioner of Income Tax, Mumbai Vs. Arjum M.H. Ghaswala and others), AIR 2004 SC 486 (Prabha Shankar Dubey Vs. State of Madhya Pradesh), and AIR 2004 SC 1657 (Ram Phal Kundu Vs. Kamal Sharma). He has further submitted that statutory rules cannot be overridden by executive orders or executive practice. To that extent, he has relied upon 1998 (8) SCC 469 (K. Kuppusami and another Vs. State of T.N. and others). If the District Magistrate passes an order without following the statutory provision and without authority of law, the same will be declared as illegal in view of the judgement reported in AIR 1987 SC 537 (The Comptroller and Auditor General of India, Gian Prakash, New Delhi and another Vs. K.S. Jagannathan and another). The petitioner has further said that there is no procedure or mechanism prescribed under the Act, 1976 for holding auction. Therefore, when the procedure prescribed in a statute has been adopted, there was no occasion for the District Magistrate to pass an executive order ignoring the procedure under the statute applicable herein. Moreover, providing opportunity of hearing is fundamental before passing any order particularly executive order, which principle has not been followed in the present case.

On the other hand, the State has contended before us that over Plot No. 3/6, which has been allotted for the purpose of making the sports college, 1250 Khair trees are standing and the age of such trees as per the report of the Divisional Director, Social Forestry Department, Saharanpur is 35 years. The trees are planted in the year 1993-94 and 2001-02 in 30 hectares of land. The Director of Sports, U.P. has also confirmed the layout plan for construction of academic and residential block, for which there is a requirement of felling 300 trees. The Gaon Sabha has never intimated or consulted the respondent no. 6 i.e. Director of Sports, before auction. Pick and choose method was adopted for demarcating the trees to be cut. Number of trees is wrongly mentioned and the valuation has also wrongly been done, therefore, the auction notice is bad. Khair trees are very costly trees as "Kattha" is made out of it. Trees are more than worth Rs. 2 crores but have been auctioned only for a sum of Rs.44 lacs approximately. According to the State, the petitioner's own contention is that during pendency of the present writ petition, Mafias started cutting the trees illegally and till date about 2000 Khair trees having valuation of Rs. 2 crores are cut down. The public auction has been made on the incorrect facts as over Khasra No. 3/6 there are only 1254 trees, whereas Gaon Sabha has stated that total number of trees standing on the plot is 2693. Rest of the trees are on Plot No. 143/Sa, which is adjacent to Plot No. 3/6. Therefore, wrong information voids the entire auction. Enquiry report has been rightly made. Agenda was circulated on 13th April, 2011. Advertisement was made in two daily newspapers, namely, "Dainik Jagran" and "Amar Ujala" on 17th April, 2011 and auction was held on 18th April, 2011 at 10.00 A.M. Moreover, 17th April, 2011 was Sunday and, therefore, the bank draft could not be prepared by 10.00 A.M. i.e. in the morning on 18th April, 2011. The auction was held in contravention to Rule 285-A of the Rules, 1952, which provides for sale of immovable property and speaks that no sale shall take place on Sunday or any other gazetted holiday or until after the expiration of at least 30 days from the date on which proclamation under Rule 282 was issued. However, in the present case, there was not even 24 hours gap from the advertisement to hold the auction and also not a gap of seven days from the date of circulation of agenda to hold the auction. The confirmation has not been obtained. It has been further submitted on behalf of the State that except 300 trees, other trees are premature and can be protected for more than 20 years ahead. The trees are not properly demarcated and numbered. Further, there is a question of loss of revenue. High potential value of such trees cannot be ruled out. So far as 300 trees, which are blocking the layout plan, are concerned, they can be ordered to be cut down, otherwise the grant will lapse by 15th March, 2011 and accordingly rest of the trees, which are not covering the plan, may be saved.

According to us, in the cases of contractual obligations we do not interfere very often but in a restricted manner when we find that the ratio of the Supreme Court judgements reported in AIR 1990 SC 1031 (Mahabir Auto Stores and others Vs. Indian Oil Corporation and others) and 1994 (6) SCC 651 (Tata Cellular Vs. Union of India) are applicable, that too in the decision-making process but not the decision like appellate authority. In doing so, we come across the cases of: (a) concluded contract, (b) promissory estoppel, and (c) legitimate expectation. In the cases of concluded contract, parties are governed by the terms of the contract, therefore, interference of the writ Court is normally not available. So far as question of promissory estoppel is concerned, sometimes we are construing the contract by necessary express or implied actions and turning therefrom. Though the question of estoppel is prescribed under Section 115 of the Indian Evidence Act but largely the Supreme Court and several High Courts apply the same as an instrument of the writ jurisdiction. In any event, when we consider something by the prescription of promissory estoppel, we see at first whether the petitioner has invoked the writ jurisdiction with clean hands or not. Out of several factual ingredients, one is the process of tender conducted by the Gaon Sabha on the instructions of the lower level executives. The tender notice to maintain the formality was made on 17th April, 2011 and tender was concluded in favour of the petitioner on 18th April, 2011. There is a serious dispute about the number of available Khair trees and price thereof mentioned in the tender notice, which were detected on the basis of the objection and auction dated 18th April, 2011 has been cancelled by the authority concerned on 18th May, 2011. On the basis of submission with regard to procedure, the only silver line in favour of the petitioner is that as per Rule 115-S (1)(iii) of the Rules, 1952 the auction has been treated to be closed in favour of the highest bidder and become final. However, the petitioner has forgotten that there are two conditions that the auction will be final on expiry of forty-two days from the date of auction where no objections are filed and where any objection is filed, on the auction being confirmed by the Tahsildar or the Collector after the disposal of the objections or appeal, as the case may be. Since the order impugned was passed immediately after expiry of one month i.e. 18th May, 2011 and the petitioner has only deposited the 1/4th amount as per Rule 115-S(1)(ii), the auction cannot be said to be closed and final. Moreover, we do not find that any different method has been adopted by the authority other than the method prescribed by the law. Hence, no promissory estoppel applies against such factual and legal question which arose in this case. Therefore, the remaining is the question of legitimate expectation. The other parts of Rule 115-S speak that if any decision on the basis of the objection is taken, a notice is required to be given to the highest bidder to show cause. The petitioner's grievance is that no opportunity of hearing has been given to him. As against this background, particularly to meet the limited requirement of legitimate expectation, post-decisional hearing will be given to the petitioner as early as possible. Status quo will be maintained with regard to condition of woods, also in case of trees fallen down, under the strict police protection, so that no third party or rank outsider can interfere with such properties. The petitioner will be entitled to get refund of the deposits made by him, if not already refunded. Advertisement with regard to sell of the trees and woods will be made upon making wide circulation and following the democratic process. There should not be any defect in the notice in respect of the properties and fixing the price. If the advertisement is made properly following such conditions, the petitioner along with other participants will be entitled to participate in the tender process upon purchasing the tender document afresh.

In view of the aforesaid observations/directions, the writ petition is treated to be disposed of instead of dismissing the same, however, without imposing any cost.

(Justice Amitava Lala)

I agree.

(Justice Pradeep Kumar Singh Baghel)

Dated:29th May, 2012.

SKT/-

Hon'ble Amitava Lala, J.

Hon'ble Pradeep Kumar Singh Baghel, J.

Under the authority of the Hon'ble Chief Justice additional cause list has been printed for the purpose of delivery of judgement and the same has been delivered at 02.00 P.M. in the Court upon notice to the parties.

The writ petition is treated to be disposed of, however, without imposing any cost.

Dt./- 29.05.2012.

SKT/-

For judgement and order, see order of the date passed on the separate sheets (nine pages).

Dt./-29.05.2012.

SKT/-