Sacchu @ Sachendra Pratap Singh vs Board Of Revenue Lucknow U.P. Thru ...
2022 Latest Caselaw 20017 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved On:9.11.2022
 
Delivered On:6.12.2022
 
Court No. - 52
 

 
Case :- WRIT - B No. - 44299 of 2006
 

 
Petitioner :- Sacchu @ Sachendra Pratap Singh
 
Respondent :- Board Of Revenue Lucknow U.P. Thru The Chairman And Others
 
Counsel for Petitioner :- Kunal Ravi Singh,B.P. Mishra,Om Prakash Misra,Om Prkash Singh
 
Counsel for Respondent :- C.S.C.,A.N. Mishra,Bala Nath Mishra,Barun Pratap Singh,C.N. Saroj,S.K. Mishra,Sachin Mishra,Siddharth,Tarun Pratap Singh,Vinay Singh
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Kunal Ravi Singh, learned counsel for the petitioner, learned Standing Counsel for respondent nos.1, 3, 5 & 6 and Mr. Tarun Pratap Singh, learned counsel for respondent no.2.

2. Brief facts of the case are that respondent no.2 and his wife had taken a loan from Rs.1,70,000/- on 30.1.1997 from respondent no.4 for agriculture purpose but respondent no.2 failed to repay the loan, hence recovery proceeding was initiated against respondent no.2 accordingly a Writ Petition No.5200 of 2001 was filed before this Court at the instance of respondent no.2, this Court vide order dated 12.2.2001 disposed of the writ petition directing respondent no.2 to pay the entire loan in three equal instalments. Respondent no.2 again failed to deposit the loan amount inspite of the order passed by this Court on 12.2.2001, hence after following the procedure property was attached and sale proclamation was issued fixing 5.8.2001 for auction. Respondent no.2 filed an application for modification of the order dated 12.2.2001 passed in Writ Petition No.5200 of 2001, this Court vide order dated 19.7.2001 had modified the order dated 12.2.2001 to the extant that respondent no.2 shall deposit first instalment by end of August, 2001 but respondent no.2 failed to deposit the loan amount accordingly, recovery proceeding was initiated against respondent no.2 and the land of respondent no.2 which was given in security for the loan was attached, the sale proclamation was issued for Rs.2,38,333/- plus other charge, the date 15.4.2002 was fixed for auction but auction could not take place, hence after issuance of sale proclamation 16.7.2002 was fixed for auction. Respondent no.2 refused to accept sale proclamation, hence notice was pasted on the door of the house belonging to respondent no.2, on 16.7.2002 public auction was held in three lots. There was no bid for Lot Nos.1 & 2 but four persons gave their bid in respect to Lot No.3 and the bid of petitioner was highest for Rs.1,30,000/-, Lot No.3 was in respect to Khata No.59, Khasra No.289 area 1.396 hectare. Petitioner deposited the full bid amount for Lot No.3 and Collector executed a sale deed in favour of petitioner on 28.12.2002 in respect to Khasra No.289 area 1.396 hectare of Khata No.59, the possession was also delivered to petitioner on 28.12.2002. Respondent no.2 filed an objection before Commissioner beyond period of limitation under Rule 285 I of U.P.Z.A. & L.R. Rules which was rejected by Commissioner vide order dated 28.11.2002. On 7.4.2003 respondent no.2 filed a suit against the bank, State of U.P., Tahsildar and Sachendra Pratap Singh for declaration that sale deed dated 28.12.2002 be declared void, which is still pending before Civil Court. Respondent no.2 challenged the order of Commissioner dated 28.11.2002 through revision before Board of Revenue, the revision was allowed by Board of Revenue vide judgment / order dated 25.7.2006 setting aside the order of Commissioner dated 28.11.2002 directing the Collector that if borrower-revisionist does not pay due amount till 30.9.2006 then auction be held in accordance with law on priority basis, Board of Revenue has also ordered that bid amount deposited by auction purchaser be refunded to him. Hence, this writ petition on behalf of petitioner-auction purchaser.

3. This Court while entertaining the writ petition has passed the following interim order dated 21.8.2006:-

"Heard learned counsel for the petitioner and the learned Chief Standing Counsel, who has accepted notice on behalf of respondent nos.1, 3, 5 & 6, prays for and is granted four weeks' time to file counter affidavit. The petitioner will have three weeks' thereafter to file rejoinder affidavit.

Issue notice to respondent nos.2 & 4 returnable at an early date.

List immediately after the expiry of the aforesaid period.

Till the next date of listing, the operation of order dated 25.7.2006 passed by Chairman, Board of Revenue (Annexure-1) shall remain stayed."

4. In pursuance of the order dated 21.8.2006, respondents have filed their counter affidavit and petitioner has filed rejoinder also in reply to the counter affidavit filed by respondents.

5. Counsel for the petitioner submitted that respondent no.2 is borrower and he failed to repay the loan advanced by the bank inspite of order passed by this Court in the writ petition arising out of recovery proceeding filed by respondent no.2 himself, as such, respondent no.2 is not entitled to any relief from any Court in respect of same recovery proceeding. He further submitted that objection under Rule 285 I of U.P.Z.A. & L.R. Rules filed by respondent no.2 was beyond 30 days, as such, in view of law of laid down by this Court reported in Writ-B No.1003602 of 2010, Parvinder Kaur and Others Vs. Board of Revenue, Lucknow and Others decided on 27.1.2022 delay in filing objections under Rule 285 I of U.P.Z.A. & L.R. Rules cannot be condoned, as such, objection under Rule 285-I of U.P.Z.A. & L.R. Rules cannot be entertained after expiry of limitation period. He further submitted that refusal to accept the notice would be deemed to be sufficient service under Order 5 Rule 17 of Civil Procedure Code. He further submitted that there is no requirement to mention approximate value of the land in Z.A. Form 74, in support of his argument, counsel has placed reliance upon a judgment rendered in Writ Petition No.22694 of 2004, District Cooperative Federation Limited and Others Vs. State of U.P. and Others decided on 4.7.2005 in which the Division Bench has held that there is no mistake in not mentioning the estimated value of the property in Z.A. Form 74. He further submitted that objection filed by respondent no.2 under Rule 285 I of U.P.Z.A. & L.R. Rules has been rejected by Commissioner by reasoned order but Board of Revenue has exceeded revisional jurisdiction permitting respondent no.2 for payment of outstanding dues, as such, impugned revisional order be set aside. He further submitted that auction sale had already been confirmed and sale deed has been executed in favour of petitioner on 28.12.2002 accordingly, petitioner is entitled to the relief claimed in the writ petition.

6. On the other hand, learned counsel for respondent no.2 submitted that the petitioner was making payment of the loan amount from time to time, however, the entire amount could not be paid due to unavoidable circumstances. He further submitted that entire auction proceeding has been initiated and concluded in collusion with the petitioner and Tahsil Authorities. He further submitted that in the Z.A. Form 74 estimated value of the property in question has not been given. He further submitted that service was not sufficient upon the petitioner with respect to the auction in question, notice was not pasted at the door of the house of respondent no.2. Counsel for the petitioner placed reliance upon the Section 327 of U.P.Z.A. & L.R. Act, which is as follows:

"327. Mode of service of notice. - Any notice or other document required or authorized to be served under this Act may be served either -

(a) by delivering it to the person on whom it is to be served, or ;

(b) by leaving it at the usual or last known place of abode of that person, or;

(c) by sending it in a registered letter addressed to that person at his usual or last known place of abode, or;

(d) in case of an incorporated company or body, by delivering it or sending it in a registered letter addressed to the secretary or other principal functionary of the company or body at its principal office, or

(e) in such other manner as may be laid down in the Code of Civil Procedure, 1908 (V of 1908)"

7. He further placed reliance upon Rule 283 of U.P.Z.A. & L.R. Rules, which is as follows:

"283. In proclamation for sale under Section 286, the Collector shall state the amount of the annual demand and the estimated value of the property calculated in accordance with the rules in Chapter XV of the Revenue Manual."

8. Learned counsel for respondent no.2 further submitted that procedure as prescribed under Section 279 of U.P.Z.A. & L.R. Act has not been followed which provides for attachment of sale and movable property first and without attachment of sale of movable property the attachment of holding cannot take place. He further submitted that tractor of respondent no.2 was in fit condition at the relevant time but without taking any action in respect to the tractor, the agriculture holding belonging to respondent no.2 has been auctioned. He further submitted that munadi etc has not taken place before conducting the auction, as such, the entire proceeding conducted was illegal. He further submitted that valuation of the property was more than Rs.3,50,000/- and it has been auctioned for Rs.1,30,000/- which also demonstrate that the auction proceeding was conducted in illegal manner.

9. Learned counsel for respondent no.2 placed reliance upon the following judgments:-

(i) 2013 (5) AWC 5258, Chandan Singh and Others Vs. State of U.P. and Others.

(ii) 2014 RD 125 12, Ramesh Chand Gupta Vs. State of U.P. and Others.

(iii) 2006 ADJ 3 424, M/S Swadeshi Plytex Ltd. Vs. Board of Revenue, U.P. Lucknow & Others.

10. I have considered the argument advanced by learned counsel for the parties and perused the record.

11. There is no dispute about the fact that respondent no.2 failed to deposit a loan amount inspite of the order passed by this Court in the writ petition arising out of recovery proceeding. The proceeding for auction was conducted on 16.7.2002, auction took place and petitioner was highest bidder for Rs.1,30,000/- in respect to Lot No.3 who deposited the full bid amount, accordingly, Collector executed a sale deed in favour of petitioner on 28.1.2002 in respect to Khasra No.289 area 1.396 hectare. Respondent no.2 filed an objection under Rule 285 I of U.P.Z.A. & L.R. Rules, which was rejected by the Commissioner vide order dated 28.11.2002, the revision filed by respondent no.2 was allowed and liberty was given to respondent no.2 (borrower) to pay the entire amount otherwise the auction will be conducted in accordance with law on priority basis.

12. Since, petitioner failed to deposit the loan amount inspite of the two orders passed by this Court, as such, the liberty given by the Board of Revenue to deposit the loan amount in exercise of revisional jurisdiction by the Board of Revenue is wholly illegal.

13. So far as setting aside the auction sale on the point of non mentioning estimated value of the auction property in Z.A. Form No.74, this Court has held in the case of District Cooperative Federation Limited (supra) that non mentioning estimated value of the property in the Z.A. Form 74 will not make the auction illegal unless substantial injury has been occasioned to the borrower is established. Paragraph No.26 of the judgment is relevant, which is as follows:

"26. Our conclusions are as follows:

(a) The petitioner had information regarding auction sale.

(b) The attached property can be sold in lots.

(c) No auction sale can be set aside for any irregularity or mistake in publishing or conducting the auction sale unless the aggrieved person proves that he has sustained substantial injury due to the same.

(d) There is no irregularity or mistake in calculating the estimated value of the property.

(e) There is mistake in not mentioning the estimated value of the property in ZA Form 74, however because of this mistake no substantial injury has been occasioned to the petitioner."

14. In the instant case, respondent no.2 has failed to demonstrate the substantial injury caused to him rather respondent no.2 misused the process of law, as such, argument advanced by learned counsel for the respondent no.2 on the point of non-mentioning of estimated value of the auction property in Z A Form 74, the auction has been rightly set aside by the Board of Revenue, is liable to be rejected.

15. On the point of delay in filing the objection under Rule 285 I of U.P.Z.A. & L.R. Rules, counsel for the petitioner has cited the judgment rendered in Parvinder Kaur (supra) in which it is held that Section 5 will not applicable to the objections filed under Rule 285 I of U.P.Z.A. & L.R. Rules, it will be relevant to mention that Division Bench of this Court in the case reported in 1998 (1) AWC 471, Prithvipat Vs. State of U.P. and Others has held that Section 5 of Limitation Act will be applicable to the proceeding under Rule 285 I of U.P.Z.A. & L.R. Rules and the proceeding under Rule 285 I of U.P.Z.A. & L.R. Rules have been held to be judicial proceeding, hence the argument advanced by learned counsel for the petitioner that objection under Rule 285 I of U.P.Z.A. & L.R. Rules filed by respondent no.2 beyond period of limitation cannot be considered on merit is not accepted in view of the decision rendered by the Division Bench of this Court in Prithvipat (supra) although this will not come in the way of petitioner as objection under Rule 285 I of U.P.Z.A. & L.R. Rules filed by respondent no.2 was not dismissed on the point of limitation rather the same was dismissed on merit.

16. So far as service of notice of the auction proceedings upon respondent no.2 is concerned, the notice was refused by respondent no.2, hence notices was pasted on the door of the house of the petitioner, hence auction cannot be set aside on the ground of non service of notice upon respondent no.2.

17. The argument advanced by learned counsel for respondent no.2 on the scope of Section 279 of U.P.Z.A. & L.R. Act with respect to attachment and sale of movable property first the allegation made by petitioner in Paragraph No.9 of the plaint of Suit No.34 of 2003 will be relevant which is as follows:

"9- यह कि ट्रेक्टर के दुर्घटना ग्रस्त हो जाने के बाद वादी का पुत्र विपिन कुमार बीमार हो गया उसको पैरालिसिस की बीमारी हो गयी जिसमे इलाज में वादी का काफी खर्चा हो गया। उसके बाद वादी की पुत्री बीमार हो गयी और उसके इलाज में वादी का काफी रूपया खर्च हुआ। जिस कारण प्रतिवादी संख्या 1 को ऋण अदा नहींं कर सका।"

18. The perusal of Paragraph No.9 of the plaint of Suit No.34 of 2003 filed on 9.4.2003 by respondent no.3 himself demonstrate that tractor belonging to respondent no.2 was not in good condition, as such, the agricultural holding belonging to respondent no.2 was auction as provided under Section 279 of U.P.Z.A. & L.R Act although counsel for respondent no.2 is denying the fact that tractor was not in good condition but there is no substantial proof of denial and the plaint allegation are of respondent no.2 himself, as such, argument advanced by counsel for the respondent no.2 on the Section 279 of U.P.Z.A. & L.R. Act is also rejected.

19. It is also material that the auction was conducted, confirmed and sale deed was executed in favour of petitioner and respondent no.2 has already filed a Suit No. 34 of 2003 for cancellation of the sale deed executed in favour of the petitioner impleading bank, State and petitioner as defendants which is alleged to be pending in the Civil Court, as such, the impugned order dated 25.7.2006 passed by the Board of Revenue cannot be sustained in the eye of law whereby the auction has been set aside and liberty has been given to respondent no.2 / borrower to deposit the dues otherwise fresh auction should take place.

20. Considering the entire facts and circumstances as well as ratio of law laid down by this Court, the impugned order dated 25.7.2006 passed by the Board of Revenue, Lucknow, U.P. in Revision No.66 (Sale) / 2002-2003 / Farrukhabad is liable to be set aside and is hereby set aside.

21. The writ petition stands allowed.

22. No order as to costs.

­Order Date :- 6.12.2022

Rameez