Rakesh And Others vs State Of U.P. Thru Secy. And Others
2018 Latest Caselaw 3025 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 40
 

 
Case :- WRIT - C No. - 29893 of 2012
 

 
Petitioner :- Rakesh And Others
 
Respondent :- State Of U.P. Thru Secy. And Others
 
Counsel for Petitioner :- Prabhat Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,Jayant Benerji,Vipin Sinha
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Harsh Kumar,J.

Heard Sri Prabhat Kumar Srivastava learned counsel for the petitioner who is seeking an adjournment today after his attention was invited to the findings recorded in the impugned order passed by the Collector. We are not inclined to grant any adjournment because of the fact that this is a dispute which is almost 38 years old and it has now reached this Court finally with the order passed by the Collector pursuant to the directions of the High Court.

This dispute was being earlier contested individually and only by late Murari Lal, the father and husband of the petitioner nos. 1, 2, 3 and 4 respectively. They are the heirs of late Murari Lal who was the auction purchaser of the property in question that was owned by the grand father of the respondent nos. 6 and 7. Learned counsel for the State-respondent nos. 1 to 4 has produced the original records. A counter affidavit has been filed on behalf of the respondent nos. 6 and 7 which is on record. It is to be noted that the affidavit in support of this writ petition has not been filed by any of the petitioners but by Nain Singh.

The background in which this petition was instituted is now evident from the facts already brought on record and the entire history has been indicated in the judgment dated 22nd December, 2010 in Writ Petition No. 41346 of 2003, copy whereof has been filed as Annexure No. 2 to the writ petition. We are extracting the said judgment in order to avoid repetition of facts.

"Heard learned counsel for the petitioner, Shri R.B. Sahai for the respondent Bank, learned Standing counsel for State respondents and Shri Sunil Kumar for the private respondents.

This petition is directed against an order dated 4.8.2003 whereby the Sub Divisional Magistrate has rejected the bid of the petitioner.

Brief facts are that Shri Ram Prakash Tayagi, grand father of respondent nos. 4 and 5 took an agricultural loan of Rs. 42,500/- from the respondent Bank in 1975. He did not deposit the instalments despite repeated reminders and therefore, a recovery certificate was issued on 28.3.1977. It appears that certain electricity charges were also outstanding and thus recovery citation was issued for Rs. 59,113.17/- plus interest and collection charges and for electricity dues for Rs. 8685.41/- plus interest and collection charges. As the predecessor in interest of respondent nos. 4 and 5 did not deposit the amount, a piece of land was attached on 20.11.1980 whereafter it was auctioned on 21.1.1981 where the petitioner was the highest bidder and he deposited the entire amount on 2.2.1981. The predecessor in interest of respondent nos. 4 and 5 preferred a Civil Suit No. 23 of 1981 before Munsif Khurja which was dismissed on 4.2.1981 as it was not maintainable. He challenged it through an Appeal No. 18 of 1981 which was dismissed against which Writ Petition No. 17223 of 1988 was filed which also came to be dismissed on 12.3.2001.

All this while neither any orders were passed confirming or cancelling the bid nor any application under Rule 285(H) or 285(I) of the U.P. Zamindari Abolition & Land Reforms Act (hereinafter referred to as the Rule) was filed before the Commissioner. After dismissal by this Court, the bid has been rejected by the Sub Divisional Magistrate by the impugned order stating that about 20 years have elapsed and values have gone up and therefore, the auction was cancelled.

Learned counsel for the petitioner has urged that since neither any application under Rule 285(H) or 285(I) was preferred by the debtor, the Collector was bound to pass an order confirming the sale under Rule 285(j). In the alternative he has urged that the Sub Divisional Magistrate did not have any power to cancel the bid.

It is admitted to the respondents that no application either under Rule 285(H) or 285(I) was filed. It is also not denied that the entire money had been deposited by the petitioner well within time. It is apparent from the facts that petitioner cannot be blamed in any manner for the delay in consideration of the bid and if anyone could be blamed it was the judgment debtor himself or the Collector. In the counter affidavit filed by the State, it is stated that during the pendency of the proceedings lodged by the judgment debtor the value of the land has increased manifold and therefore, the bid was cancelled.

A Division Bench of this Court in the case of Ram Awadh Tiwari Vs. Sudarshan Tiwari and others [2008 (6) ADJ 776] has held that the Sub Divisional Magistrate/Sub Divisional Officer has no jurisdiction to approve sale under the U.P. Zamindari Abolition & Land Reforms Act as the power is vested with the Collector but there is nothing on record that the Collector even applied his mind to the present case.

However, learned counsel for the respondent contends that since the Collector is not impleaded as a party, no relief can be granted to the petitioner and the petition has to be dismissed for non rejoinder. From the pleadings, it is apparent that the challenge is to the order passed by the Sub Divisional Magistrate who has been impleaded as a party. The Court can take judicial notice of this fact that it is the Collector who has to consider the bid and the Court is entitled to mould the relief and refer the matter to the Collector. However, since the private respondents or his predecessors never filed any application challenging the auction proceedings, It is very doubtful whether they are entitled to any hearing.

For the reasons above, this petition succeeds and is allowed and the impugned order dated 4.8.2003 is hereby quashed. The entire file be placed before the Collector to consider again the grant of approval to the auction sale in accordance to law after hearing the petitioner.

In the circumstances of the case, no order as to costs."

Accordingly as per the aforesaid judgment since the auction had not been confirmed, the matter was placed before the Collector, Bulandshahr who has now passed the impugned order dated 26.05.2012.

Learned counsel Sri Prabhat Kumar Srivastava has vehemently urged that there was no agreement for any joint participation in the auction between late Murari lal and others, and even otherwise, such a fact has been shown and indicated for the first time in the impugned order. He, therefore, contends that this basis which has been made for not confirming auction proceedings was neither in contest nor this fact was known previously. He further submits that the auction money having been deposited, there was no option to the Collector but to confirm the said auction in favour of the petitioners who are the heirs of the late Murari Lal who was the sole auction purchaser.

What we find from the impugned order is that the auction proceedings have been held to be invalid on the ground that a minimum price of Rs.60,000/- had been fixed and the bids had to be invited over and above the said amount. The second ground taken in the impugned order is that the proposed auction was for three plots, namely, Plot Nos. 233, 112 and 113. No auction was conducted with regard to the other two plots and it was only Plot No. 233 for which bids were entertained. This also according to the Collector was a totally incorrect approach and serious irregularity in the auction proceedings. The third aspect which we find, and on which Sri Srivastava has vehemently urged to be not a ground available, is that the auction was conducted in which Murari Lal participated jointly alongwith his two partners Rajendra Tyagi and Nain Singh as well as Smt. Sharda Devi and one Sri Pyare Lal that was not permissible. Apart from Murari Lal, no one contested the proceedings throughout nor this fact of a joint participation by all these persons was ever brought to the notice of this Court when the writ petition was finally disposed of on 22nd December, 2010. Sri Srivastava submits that this fact was never made known to the petitioners or to late Sri Murari Lal or his heirs either through any counter affidavit or any other document.

We are unable to accept this argument on behalf of the petitioners for the simple reason that the records have been summoned and we have perused the original records which includes the offer dated 21st January, 1981 signed by all the five persons named hereinabove. They have categorically stated that the auction bid on behalf of all these persons shall be solely made by Sri Murari Lal as they do not individually have the entire amount available to purchase the property which is sought to be auctioned. It is evident from the records produced as also the affidavit exchanged between the parties that five persons had made an offer to bid including late Murari Lal. The other four persons including Nain Singh who has filed his affidavit in support of this petition has nowhere chosen to contest the proceedings of the auction. The Collector in the impugned order has categorically recorded that Murari lal, Rajendra and Nain Singh had offered to bid for only half of Plot No. 133. Smt Sharda Devi had offered to bid only for 1/4th of the area of the said plot, and similarly, Pyare Lal had made his offer only for 1/4th part. This is clearly evident from the document dated 21st January, 1981 which is available on the original record and which has been deliberately suppressed by Murari lal and the present petitioners throughout the proceedings. No challenge was ever raised by Murari Lal nor these facts were ever disclosed by Murari Lal and this clearly amounts to a suppression of a material fact in the previous proceedings which has been rightly taken notice of by the Collector.

The auction therefore was absolutely irregular suffering from material lapses inasmuch as the bid was finalized as if only Murari Lal was the auction purchaser. Bids in partnership had not been permitted by the authorities nor the learned counsel has been able to establish that the bid could have been tendered by forming a cartel of five persons disclosing their shares in the bid. A contributory bid process is not supported by any legal provision that may validate the bid offer. Learned counsel has not been able to point out the permissibility of such a process under the provisions of the UPZA & LR Act, 1950 and the Rules framed thereunder.

Apart from this, the fact that only one of the plots was made subject matter of bid and the bid was closed even below the minimum price of Rs.60,000/- fixed was also a fact which has been suppressed in the earlier proceedings. There were three plots, the proposal whereof was made for auction but it is not understood as to how the authority proceeded to finalize the bid of only one plot that too even under the aforesaid circumstances. The auction was therefore a clear outcome of such manipulations and it is well settled that serious manipulations and transactions vitiate the proceedings.

Late Sri Murari Lal is a signatory to the document dated 21.01.1981 alongwith four others. He suppressed the said disclosure which ought to have been made and the others did not choose to contest the proceedings. Nain Singh along with his partner and brother Murari Lal had also signed the said document. He has sworn the affidavit in support of this writ petition but the aforesaid facts have not been pleaded in the present writ petition as well. As a matter of fact the correctness of the findings recorded on the basis of such facts and the recital in the impugned order to that effect have not been challenged nor the document dated 21.01.1981 has been disputed.

The writ jurisdiction under Article 226 is a discretionary jurisdiction. Orders obtained by suppression of material facts therefore disentitles the petitioners for any such equitable relief or even relief against the impugned order. We are amazed as to how ignorance is being claimed by the petitioners about the document dated 21.01.1981 which is available on record produced before us bearing the signatures of all five named above and which is the basis for the entire auction categorically stating therein that the auction bid was being participated by all the five persons jointly and not alone by Murari Lal. This therefore was made the basis not to confirm the auction proceedings. To our mind the Collector has not committed any illegality in refusing to confirm the auction proceedings as it is clearly vitiated. Even otherwise as noted above, the conduct of Murari Lal in suppressing this material fact before this Court also goes a long way to indicate as to how the auction proceedings were manipulated. It may also be stated that none of the petitioners before us have disputed the aforesaid facts recorded in the impugned order of the Collector. We therefore find no merit in this writ petition, the same is accordingly rejected. Interim order shall stand discharged.

The original records which have been produced before us have been returned back to the learned Standing Counsel.

Order Date :- 4.10.2018

S.Chaurasia