Allahabad High Court
Smt. Meena Singh W/O Late Anadi ... vs Jang Bahadur & Ors. ( M/S 1047/1988 ... on 21 May, 2013
Bench: Shri Narayan Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved/AFR
Review Petition No.368 of 2010
Smt.Meena Singh and others ....Review Petitioners
Versus
Jang Bahadur and others .....Opposite parties
***
Hon'ble Shri Narayan Shukla,J.
Heard Mr.Ratan Kant Sharma, learned counsel for the review petitioners as well as Mr.S.P.Shukla, learned counsel for the petitioners/respondents.
Through the instant review petition the petitioners have prayed to review the order dated 6.5.2010, passed by this court in writ petition No.1047 (MS) of 1988.
The main ground to review the order passed by this court has been taken that this court has failed to appreciate Rule 285-H of the U.P.Zamindari Abolition and Land Reforms Act (in short U.P.Z.A.&L.R.Act). It is stated that this court has dealt with the case with the findings that once the petitioners' moved the application and offered to repay the entire dues within 30 days from the date of sale, before confirmation, the Collector was under obligation to set aside the sale, but he did not do so, rather he confirmed the auction sale. It is stated by them that deposition of amount is a condition precedence for acceptance of any such application for setting aside the sale, whereas in the case in hand there is no proof of deposition of amount by the petitioners. It is further stated that only moving the application to set aside the sale within time is not sufficient to set aside the sale until and unless it is followed with the deposit of the amount. In support of his submission he cited the decision of this court i.e. Ghanshyam Singh and others versus Divisional Commissioner, Vindhyachal Division, Mirzapur and others, reported in 2006 (100) RD 534. In this case this court held that the application is a consequence of the deposit and since no deposit under Rule 285-H of the Rules had been made, therefore, for this reason the application is not maintainable.
On the other hand learned counsel for the respondents submitted that through the application the petitioners had shown their intention to deposit the amount, but until and unless they are permitted by the Collector, there was no occasion for them to deposit the same as the government revenue is always deposited with the Treasury. The Treasury does not accept the amount unless it is verified by the Revenue Authority and on moving their application, the Revenue Authority did not pass any order in the matter. He also relied upon another judgment of this court in his support i.e.Kewal Prasad versus Bank of Baroda and others, reported in 2006 (3) AWC 2976, in which this court after considering the judgment of Ghanshyam Singh (Supra) held that there was no explanation coming forth in the counter affidavit by the respondents as to why the petitioners' application had not been disposed of before the expiry of thirty days. This court further observed that the respondents could not doubt any order having been passed by the Revenue Authority directing the petitioners and permitting them to deposit the amount as required under Rule 285-H.
He also raised the question on the locus of the counsel of Review petitioners with the submission that the counsel different to the counsel appeared in the writ petition cannot be permitted to argue the review petition, as has been held by the Hon'ble Supreme Court in the following Cases:-
(1) M.Poornachandran and another versus State of Tamil Nadu and others, reported in (1996) 6 SCC 755.
(2) Tamil Nadu Electricity Board and another versus N.Raju Reddiar and another, reported in AIR 1997 Supreme Court 1005.
However, in reply Mr.Ratan Kant Sharma, learned counsel for the review petitioners submitted that he has taken permission from the counsel who appeared earlier in the writ petition to argue the case may be oral, therefore, I do not take objection raised by the learned counsel for the respondents as serious one.
Rule 285-H (1) of the Rules speaks 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.
Upon reading the aforesaid provisions, I find that the application for setting aside the sale has to be moved within thirty days from the date of sale, but it is not necessary that the application must be followed with the deposit of the dues, rather the deposition is a condition precedent for setting aside the sale, therefore, the dues necessarily have to be deposited in the Collector's office before setting aside the sale.
I am further of the view that once the application for setting aside the sale is moved, it has to be considered by the Collector concerned. He may allow or reject it. If the deposition is taken as a condition precedent for moving the application, in the result of the rejection of the application, the amount deposited with the Collector has to be returned to the defaulter, which would be an useless formality for this purpose. I am further of the view that the deposit of the amount is required to be made only after allowing the application, but necessarily before setting aside the sale as once the application is allowed, the defaulter is under obligation to deposit the dues and thereafter the Collector shall set aside the sale. In contrary if even after allowing the application, the defaulter failed to deposit the amount, there is no reason to set aside the sale.
The language as couched in Rule 285-H is unequivocal as it gives right to the person whose holding or immovable property has been sold to apply within thirty days from the date of sale for setting it aside on his depositing in the Collector's office. Thus, the intention of the legislature is very clear as it gives opportunity to the defaulter to move an application for setting aside the sale by offering to deposit the dues and on its acceptance as well as making of such deposit, the Collector shall pass the order setting aside the sale.
Under the circumstances, I am of the view that the deposition of the amount is necessarily a condition precedent for setting aside the sale, but not for moving the application for setting aside the sale. The argument as raised by the learned counsel for the respondents/petitioners is worth to be considered that unless the petitioners' application is allowed and the Treasury Form offering the amount to deposit in the Treasury is verified by the Revenue Authority, the same shall not be accepted by the Treasury. It is not in dispute that in the case in hand the petitioners moved the application for setting aside the sale within thirty days from the date of sale, but the same was kept undisposed of, rather the respondents proceeded to confirm the sale.
Therefore, I am of the view that it is a clear violation of Rule 285-H on the part of the respondents, which has been discussed in the order passed by this court on 6th of May, 2010.
In the result, I do not find error in the order. Consequently the Review petition stands dismissed.
Order Dated:21st of May, 2013.
Banswar
