Narayan Kumar Agarwal And Another vs Board Of Revenue And 5 Others
2022 Latest Caselaw 20018 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved On:10.11.2022
 
Delivered On: 6.12.2022 
 
Court No. - 52
 

 
Case :- WRIT - B No. - 359 of 2022
 

 
Petitioner :- Narayan Kumar Agarwal And Another
 
Respondent :- Board Of Revenue And 5 Others
 
Counsel for Petitioner :- Manish Kumar Nigam
 
Counsel for Respondent :- C.S.C.,Deepak Kumar Jaiswal,Sanjay Maurya
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Manish Kumar Nigam, learned counsel for the petitioners, learned Standing Counsel for respondent nos.1 & 2 and Sri Deepak Kumar Jaiswal and Sri Sanjay Maurya, counsel for respondent nos.4 & 5.

2. Brief facts of the case are that there were certain sales take dues against the firm M/s Sudarshan Oil Mills Nasirabad, Padri Bazar, District- Gorakhpur for the year 1963-1964 to 1969-1970 for an amount of Rs.7764.57 + interest. Petitioners' father Manohar Lal was a partner in the aforementioned firm. Recovery proceeding for the sales tax of the aforesaid firm were initiated and an order of attachment was issued by the Collector on 22.7.1975 attaching double storied house belonging to petitioners' father. Thereafter a sale proclamation dated 2.9.1975 was issued by the Collector for the auction of the house belonging to petitioners' father fixing 7.10.1975 under Rule 282 of the U.P.Z.A. & L.R. Rules. Since 7.10.1975 was a holiday, hence auction could not take place on 7.10.1975. An auction was held on 8.10.1975 without issuing any fresh proclamation for holding auction. Six persons participated in the auction and out of six persons, Sri Durga Prasad was the highest bidder having made a bid of Rs.13,000/-. One Kanhaiya Lal S/o Mewa Lal Jaiswal (respondent no.5) moved an application on 8.10.1975 itself for purchase the house which was alleged to put on auction on 8.10.1975 for a sum of Rs.16,000/-. Durga Prasad who was the highest bidder has given "no objection certificate" to the application of respondent no.5. Petitioners who were minor at the time of auction and father of the petitioners was confined to bed, moved an application before the Collector, Gorakhpur raising his objection to the attachment / auction. A report dated 17.10.1975 in respect to the application / objection was submitted to the auction alleged to take place on 8.10.1975. 1/4th amount of the auction money i.e. Rs.4,000/- was deposited by respondent no.5 on 8.10.1975 and the remaining 3/4th amount i.e. Rs.12,000/- was not deposited by respondent no.5 within 15 days i.e. on or before 23.10.1975. Deputy Collector (Collection) Sales Tax, Gorakhpur issued a notice dated 27.10.1975 to respondent no.5 that he has not deposited Rs.12,000/-, as such, time was given to deposit the same by 28.10.1975, aforesaid application dated 27.10.1975 was received by respondent no.5 on 27.10.1975. Respondent no.5 did not deposit the remaining 3/4th amount rather moved an application on 28.10.1975 on which Deputy Collector passed an order dated 1.11.1975 mentioning that remaining amount is to be deposited within fifteen days form the date of auction and in case the same is not deposited, the money deposited earlier is to be forfeited. On 7.11.1975, respondent no.5 moved an application to deposit Rs.12,000/- on which, Deputy Collector permitted him to deposit at his own risk. On 22.10.1975, petitioners' father- Manohar Lal moved an application requesting the Collector not to confirm the auction sale. A letter dated 1.11.1975 / 6.11.1975 issued by Deputy Collector (Collection) Sales Tax, Gorakhpur was served upon the petitioners in which it was mentioned that in pursuance of the application moved by the petitioners on 9.10.1975 and the application moved by petitioners' father- Manohar Lal, District Magistrate vide order dated 30.10.1975 passed an order for recovering the sales tax dues as per law. Petitioners' father- Manohar Lal received a letter dated 15.1.1977 through registered post to the effect that Additional Collector vide order dated 22.12.1975 has directed that sale certificate be issued in favour of respondent no.5. Petitioners' father, accordingly, filed an objection under Rule 285 I of the U.P.Z.A. & L.R. Rules on 7.2.1977 before the Commissioner, Gorakhpur Division, Gorakhpur along with the prayer for condonation of delay in filing the objection challenging the auction alleged to be held on 8.10.1975. On the objection of the petitioners' father under Rule 285 I of the U.P.Z.A. & L.R. Rules, the objections were filed by the State Government on 30.5.1977. Commissioner, Gorakhpur Division, Gorakhur vide order dated 15.6.1981 rejected the objections filed by the petitioners' father under Rule 285 I of U.P.Z.A. & L.R. Rules on the ground that the application has been filed after prescribed period of 30 days. Against the order dated 15.6.1981, a revision was filed by the petitioners before the Board of Revenue, Allahabad which was dismissed vide order dated 4.7.1981 on the ground that revision will lie before the Board of Revenue, Lucknow. Against the order dated 4.7.1981 passed by the Board of Board of Revenue, Allahabad. Petitioners' father filed writ petition No.8330 of 1981 before this Court in which interim order was passed to the effect that sale held in favour of other side shall not take effect provided petitioners deposit the entire amount. In compliance of the interim order dated 6.7.1981 passed by this Court, the petitioners deposited the entire amount. Writ Petition No.8330 of 1981 was finally heard and vide order dated 7.2.1994, writ petition was allowed, order dated 4.7.1981 was set aside and matter was remanded back before the Board of Revenue to decide the revision afresh. In the meantime, sale certificate has been issued on 7.6.1995 by the Deputy Collector (Collection) / Additional District Magistrate, Sadar, Gorakhpur in favour of respondent no.5. After remand order passed by this Court, revision has been heard afresh by the Board of Revenue and vide order dated 11.10.2021 revision was dismissed, hence this writ petition. This Court while entertaining the writ petition has passed the interim order dated 27.5.2022, which is as under:

"Heard Sri Manish Kumar Nigam, learned counsel for the petitioners and Sri Devesh Vikram, learned Standing Counsel appearing on behalf of State respondents.

The present petition has been filed seeking to raise a challenge to the order dated 15.6.1981, passed by the respondent no. 2, Commissioner, Gorakhpur Division, Gorakhpur whereby the application filed by the predecessors-in-the interest of the petitioners under Rule 285-I of Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952 was rejected and the subsequent order dated 11.10.2021 passed by the Member, Board of Revenue, U.P. at Allahabad dismissing the revision filed thereagainst by the petitioners.

Contention of counsel for the petitioners is that the auction sale having been held on 7.10.1975/8.10.1975 and the deposit of 25% of the bid amount having been made on the same day, the balance amount of the purchase money was mandatorily required to be deposited on or before 15 days from the date of sale as per Rule 285-E and, in the event of default, the sale would be held to be nullity. It is accordingly submitted that even if the application under Rule 285-I was held to be beyond the prescribed time period allowed for the purpose that would have made no difference.

Counsel for the petitioners has drawn the attention of the Court of the fact that during the pendency of the revision before the Board an interim order staying the confirmation of sale was operating.

Prima facie matter requires consideration.

Issue notice to the respondent nos. 4, 5 and 6 returnable by 16.8.2022.

Respondents are granted four weeks' week time to file counter affidavit. Petitioners shall have two weeks' thereafter to file rejoinder affidavit.

List on 16.8.2022.

Till the next date of listing, status-quo with regard to possession of the property, which is subject matter of the auction sale, shall be maintained."

3. In pursuance of the order dated 27.5.2022, respondent nos.4 & 5 has filed his counter affidavit along with an application for vacation of interim order, petitioners have filed their rejoinder affidavit also to the counter affidavit filed by respondent nos.4 & 5.

4. Learned counsel for the petitioners submitted that respondent no.5 has deposited Rs.4,000/- on 8.10.1975, the auction was confirmed for issuing sale certificate vide order dated 17.10.1975 / 18.10.1975 but the remaining 3/4th amount of Rs.12,000/- was deposited by respondent no.5 on 7.11.1975 which fully demonstrate that auction was confirmed prior to deposit of auction money by the auction purchaser. He further submitted that date of auction was 8.10.1975, as such, the 3/4th amount was to be deposited within fifteen days i.e. on or before 23.10.1975 as prescribed under Rule 285 E of U.P.Z.A. & L.R. Rules, as such, the entire auction proceeding deemed to be null and void. He further submitted that objection under Rule 285 I of U.P.Z.A. & L.R. Rules filed by the petitioners has been rejected on the ground of limitation although in view of the Division Bench decision of this Court, the Section 5 of the Limitation Act will be applicable to the objection under Rule 285 I of U.P.Z.A. & L.R. Rules also. He further submitted that revision filed by the petitioners was also dismissed arbitrarily by the Board of Revenue without considering the case of the petitioners on merit. He further submitted that entire auction proceeding were initiated in violation of Rule 285 E and 285 K of U.P.Z.A & L.R. Rules, 1952. He further submitted that alleged sale is a nullity and has to be ignored in full.

5. Learned counsel for the petitioners placed reliance upon the following judgment of the Hon'ble Apex Court as well as this Court:

(i) AIR 1954 SC 349, Manilal Mohanlal Shah and Others Vs. Sardar Sayed Ahmad Sayed Mahmad and Another.

(ii) 1955 AWC 896, Mahmood Ahmad Khan (dead) Through L.Rs. Vs. Ranbir Singh and Others

(iii) 2009 (107) R.D. 22, State of U.P. and Others Vs. M/s Swadeshi Polytex Ltd. and Others.

(iv) AIR 1982 All 141 Moolchand Vs. Collector, Jalaun and Others.

(v) 1989 All LJ 1238, Babu Ram Vs. The Board of Revenue, U.P., Lucknow and Others

(vi) 1965 All LJ 277, Kunwar Mohan Swarup Vs. State of U.P. & Others

(vii) 1997 R.D. 583, Smt. Shanti Devi Vs. State of U.P. and Others

(viii) 1998 (1) AWC 471, Prithvipat Vs. State of U.P. and Others

(ix) 2008 (104) R.D. 728, Savitri Singh Vs. Board of Revenue, U.P., Lucknow and Others.

6. On the other hand, learned counsel for respondent nos.4 & 5 submitted that the objection under Rule 285 I of U.P.Z.A. & L.R. Rules filed by the petitioners was barred by limitation as prescribed under the Rule 285 I of U.P.Z.A. & L.R. Rules, as such, the objection was rightly rejected by the Court of Commissioner and the same was rightly maintained by the Board of Revenue. He further submitted that 3/4th amount of the bid has been deposited although after fifteen days but under the permission of the Deputy Collector (Collection) as well as Tax Collector Sales Tax Gorakhpur dated 7.11.1975, as such, the deposit will be treated to be valid deposit. He further submitted that sale certificate has been issued to the auction purchaser / respondent no.5 on 7.6.1995, as such, no interference is required in the matter. Counsel for the petitioner further placed reliance upon the provisions contained under Rule 285 K of U.P.Z.A. & L.R. Rules which says that If no application under Rule 285-I is made within the time allowed, all claims on the ground of irregularity or mistake in publishing or conducting the sale shall be barred. He further placed reliance upon the judgment of this Court passed in Writ-B No.1003602 of 2010, Smt. Parvinder Kaur Vs. Board of Revenue, U.P., Lucknow and Others decided on 27.1.2002 in which it has been held that Section 5 of Limitation Act will not be applicable in respect to the objections filed under Rule 285 I of the U.P.Z.A. & L.R. Rules. He finally submitted that the writ petition filed by the petitioners has no merit and is liable to be dismissed.

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

8. There is no dispute about the fact that auction alleged to take place on 8.10.1975 and 1/4th (Rs.4,000/-) amount was deposited by respondent no.5 on 8.10.1975 but the remaining 3/4th amount deposited on 7.11.1975 i.e. beyond period of 15 days from the date of auction. Objection under Rule 285 I of the U.P.Z.A. & L.R. Rules was filed by the petitioners on 7.2.1977 which was dismissed by the Commissioner vide order dated 15.6.1981 on the ground of limitation and the revision filed by the petitioners was also dismissed by the Board of Revenue by the impugned order dated 11.10.2021. The sale certificate was issued in the matter on 7.6.1995 in favour of respondent no.5.

9. Since, the 3/4th amount has been deposited after period of 15 days from the date of auction, as such, in view of provisions contained under Rule 285 E of U.P.Z.A. & L.R. Rules, the auction / sale shall deemed to be null and void and property shall be re-sold. Rule 285 E of U.P.Z.A. & L.R. Rules is as follows:

"285-E. The full amount of purchase money shall be paid by the purchaser on or before the fifteenth day from the date of the sale at the district treasury or any sub-treasury and in case of default the deposit, after the expenses of sale have been defrayed therefrom, shall be forfeited to Government and the property shall be resold and the defaulting purchaser shall forfeit all claims to the property, or to any part of the sum for which it may be subsequently sold."

10. Considering the mandatory provision contained under Rule 285-E of U.P.Z.A. & L.R. Rules as well as ratio of law laid down in Manilal Mohanlal Shah (supra), Kunwar Mohan Swarup (supra), Moolchand (supra), Babu Ram (supra) Mahmood Ahmad Khan (supra) and State of U.P. (supra) as cited by counsel for the petitioners impugned auction sale cannot be maintained in the eye of law.

11. The case law cited by learned counsel for the petitioners are fully applicable in the present matter as deposit of remaining 3/4th amount by respondent no.5 is beyond 15 days and fact of deposit is admitted to both parties, as such, there is no option except to hold that the auction held is nullity and property should be re-sold.

12. So far as the limitation question in filing the objection under Rule 285 I of U.P.Z.A. & L.R. Rules is concerned, the Division Bench of this Court in the case of Prithvipat (supra) has held that proceeding under Rule 285 I of U.P.Z.A. & L.R. Rules are judicial proceedings, as such, unless Section 5 of Limitation Act will be applicable to the proceeding under Section 285 I of U.P.Z.A. & L.R. Rules but this Court while deciding the case in Parvinder Kaur (supra) has not taken into consideration the Division Bench of this Court in Prithvipat (supra), as such, in view of Division Bench decision of this Court rendered in Prithvipat (supra), it will be held that provision of Section 5 of Limitation Act will be applicable to the proceeding under Rule 285 I of U.P.Z.A. & L.R. Rules but in place of remanding the matter before the courts below for deciding the objection / revision afresh, it will be appropriate to hold that the proceeding of auction is null and void as there is clear violation of Rule 285 E of U.P.Z.A. & L.R. Rules.

13. The alternative argument advanced by learned counsel for the petitioners is that even if it is found that Section 5 of Limitation Act is not applicable to the proceeding under Rule 285 I of the U.P.Z.A. & L.R. Rules, this Court in the case of Kunwar Mohan Swarup (supra) has held that direct writ petition is also maintainable under Article 226 of the Constitution of India if there is violation of Rule 285 E of U.P.Z.A. & L.R. Rules. The argument advanced by learned counsel for the petitioners has got substance and the impugned auction proceeding cannot be sustained in the eye of law due to violation of the mandatory provision contained under Rule 285 E of U.P.Z.A. & L.R. Rules.

14. Considering the entire facts and circumstances of the case as well as ratio of law laid down by the Apex Court as well as by this Court, the impugned order dated 11.10.2021 passed by the Board of Revenue and order dated 15.6.1981 passed by the Commissioner are liable to be set aside and are hereby set aside. Sale proceeding / auction held on 8.10.1975 and its confirmation on 17.10.1975 are held to be null and void. Respondents are directed to re-sale the property in dispute in accordance with law. Sale held on 8.10.1975 and the subsequent proceeding will not confer any right on respondent no.5.

12. The writ petition stands allowed.

13. No order as to costs.

Order Date :- 6.12.2022

Rameez