Allahabad High Court
Shri Chhotak vs Board Of Revenue And Others on 16 December, 2022
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 52
WRIT - B No. - 29100 of 1995
Petitioner :- Shri Chhotak
Respondent :- Board of Revenue and Others
Counsel for Petitioner:- Ashok Kumar Dwivedi
Counsel for Respondent :- C.S.C.
Hon'ble Chandra Kumar Rai,J.
1. Heard Sri Ashok Kumar Dwivedi, counsel for the petitioner and the learned standing counsel for respondent nos. 1 to 4.
2. As per office report dated 9.12.2022, notice issued to respondent no.5 is deemed to be sufficient under Rules of the Court.
3. Brief facts of the case are that M/s Grih Kargha Sahakari Samiti Ltd. had incurred a liability of dues to the tune of Rs.33900.98 P. and Rs.818.09 P. as interest which were not paid by respondent no.5, accordingly, a recovery certificate was issued by the Collector to recover the said amount as arrears of land revenue. In the recovery of the aforesaid amount, respondent no.4 had put in the auction of house, belonging to respondent no.5 according to provisions contained under the U.P. Z.A. & L.R. Act and Rules framed thereunder. The auction took place on 22.3.1983 and the petitioner being the highest bidder of Rs.10,000/-, deposited Rs.1/4 amount of Rs.2500/- on 22.3.1983 and remaining amount of Rs.7500/- was deposited on 30.3.1983 as required under Section 285 E of the U.P. Z.A. & L.R. Rules. The copy of the deposit receipt is annexed with this writ petition as Annexure No.1 to the writ petition. On 2.4.1983, one Anwar Ali, son of Hazi Ahmad who was neither the secretary of respondent no.5 at the relevant time nor had any concern with the house in dispute, filed an appliation before the Additional District Magistrate for cancellation of the auction dated 22.3.1983 under the provisions contained under Rule 285(H) of the U.P. Z.A. & L.R. Rules without making any deposit nor he filed any application under Rule 285 (I) of the U.P. Z.A. & L.R. Rules. The District Magistrate vide order dated 6.8.1983, without any notice to the petitioner, had cancelled the auction sale, although Anwar Ali has not deposited the amount as prescribed under Section 285(H) of the U.P. Z.A. & L.R. Rules. The petitioner challenged the order dated 6.8.1983, by way of an appeal, being Appeal No.7883 of 1983 before the Commissioner and the Commissioner made a reference vide order dated 31.5.1984 to the Board of Revenue for setting aside the order of the Collector dated 6.8.1983. The said reference was decided by the Board of Revenue on 16.11.1987, holding that the Commissioner was competent to decide the case himself, as such, the reference was discharged. The appeal was again heard before the respondent no.2 and respondent no.2 vide order dated 23.9.1992 held that respondent no.5 had already deposited the amount on 9.8.1983 as such, the proceeding for auction will automatically come to an end. Against the order of the Commissioner, petitioner filed revision before respondent no.1/Board of Revenue in which initially an interim order was granted by the Board of Revenue but subsequently the revision filed by the petitioner was dismissed on 3.8.1995, hence, this writ petition.
4. This Court while entertaining the writ petition, passed the following interim order on 16.10.1995.
"Issue notice.
In the meanwhile, considering the facts and circumstances brought on record, the status quo as on today in regard to the possession over the property which was the subject matter of the auction sale in dispute shall be maintained until further orders."
5. In pursuance of the order dated 16.10.1995, respondent no.5 has neither put in appearance nor filed any counter affidavit in the matter, denying the averments made in the writ petition.
6. Counsel for the petitioner submitted that auction proceeding has been completed in accordance with law and the petitioner being the highest bidder has deposited the amount in accordance with the provisions contained under Rule 285 (E) the U.P.Z.A. & L.R. Rules, as such, his right cannot be negated in any manner. He further submitted that Anwar Ali had no locus to initiate proceeding for cancellation of the auction and the application filed by Anwar Ali under Rule 285(H) is not maintainable at all. He further submitted that application for cancellation of auction was allowed on 6.8.1983, although, the amount was not deposited by Anwar Ali on the relevant date, as such, the auction cannot be set aside in any manner. Counsel for the petitioner placed Rule 285(H) of the U.P. Z.A. & L.R. Rules in order to demonstrate that the application filed by Anwar Ali under the aforementioned provisions is not maintainable.
[285H. (1) 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-
(a) for payment to the purchaser, a sum equal to 5 per cent of the purchase money; and
(b) for payment on account of the arrear, the amount specified in the proclamation in Z.A. Form 74 as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been paid on that account; and
(c) the costs of the sale.
On the making of such deposit, the Collector shall pass an order setting aside the sale:
Provided that if a person applied under Rule 258-I to set aside such sale he shall not be entitled to make an application under this rule.]
7. He further placed reliance on a decision of this Court in Ghanshyam Singh vs. Divisional Commissioner and Others, reported in 2006 RD 534 and Vidya Devi vs. State of U.P. and Others, reported in 1999 RD 37. Paragraph nos. 3 & 4 of the judgment rendered in Ghanshyam Singh (supra) are relevant which are as follows:-
"3. The finding recorded in the revision is that the application under Rule 285-H filed by the petitioners beyond the period of 30 days provided in the rule is not maintainable, it is submitted by the learned counsel for the petitioners that the petitioners obtained knowledge of the sale proceedings on 10-10-2002 and the delay was therefore liable to be condoned and the application allowed. The question that has arisen in this case therefore is whether the provisions of Section 5 of the Limitation Act are applicable to a proceeding under Rule 285-H of the U.P. Zamindari Abolition and Land Reforms Rules. The nature of the proceeding under Rule 285-H U.P. Zamindari Abolition and Land Reforms Rules is not judicial. A right is given to the person whose property is sold to get the sale set aside if he fulfills the requirement provided under that Rule. The right is absolute and if the requirements of the Rule are fulfilled there is no discretion left in the Collector not to set aside the sale. There is no lis to be decided. The Collector while dealing with the application does not act as a court. It is not a proceeding to which Section 5 of the Limitation Act may therefore apply. The application of the petitioners dated 16-10-2002 has been filed long after the prescribed period of 30 days provided under Rule 285-H. Sri A.K. Mishra, learned counel for the respondents 4 to 6 relied upon A.I.R. 1984 Allahabad page 334Indu Engineering and Textiles Ltd. Agra v. Commissioner, Agra Division, Agra. In this case the provisions of Rule 285-H and 285 I were considered and it was held that the Commissioner in matters relating to realization of arrears of land revenue acts as Revenue Officer, and not as a revenue court. This decision has been overruled by the Full Bench in Ram Swaroop v. Board of Revenue, 1990 RD 29 : (1990 All LJ 924). In so far as its view regarding proceedings under Rule 285 I is concerned. In 1991 R.D. 14 : (1990 All LJ 1087) (B.K. Electronics Wires v. The Additional commissioner, Meerut). Sections 172 and 173 of the U.P. Land Revenue Act in which the statutory period of limitation for filing objection is 30 days was considered and it was held that the statutory period could not be extended or relaxed and Section 5 of the Limitation Act does not apply. The Full Bench in Ram Swarup held that the Commissioner while dealing with objections under Rule 285-I acts as a court. The view taken in Indu Engineering regarding Rule 285-H U.P. Zamindari Abolition and Land Reforms Rules and about section 172 of U.P. Land Revenue Act in B.K. Electronics Wires still holds good. In is A.I.R. 1982 Allahabad 29 Munni Lal v. Sona, it was held by this Court in a case relating to Order 29 Rule 89 Civil Procedure Code, which applies to auctions by civil court that deposit must be made within 30 days from the date of the auction and time can not be extended by the court. In order 21 Rule 89 as well as in Rule 285-H U.P. Zamindari Abolition and Land Reforms Rules, the sale shall be set aside if the person whose property is sold applies to have the sale set aside on his depositing the amount referred to in these provisions. The application is consequent to the deposit. Section 5 of the Limitation Act applies to limitation in appeals and applications but not to the act of deposit of money, which is the precondition for filing the application for seating aside the sale. For this reason too section 5 of Limitation Act has no application.
5. It has also been found that no deposit under Rule 285-H of the U.P. Zamindari Abo lition and Land Reforms Rules has been made and for this reason also the application is not maintainable. The reason given is sound. The view taken by the revisional court therefore does not suffer from any error of law."
8. I have considered the arguments advanced by learned counsel for the petitioner as well as learned standing counsel and perused the records.
9. There is no dispute about the fact that auction took place on 22.3.1983 and the petitioner being the highest bidder has deposited 1/4th amount on 22.3.1983 and remaining 3/4th amount on 30.3.1983 that is within the time prescribed under Rules 285 (E) of the U.P.Z.A. & L.R. Rules. The respondents have set aside the auction on the application filed by respondent no.5 under Rule 285(H) of the U.P. Z.A. & L.R. Rules as well as the appeal and revision filed by the petitioner has been dismissed.
10. Since the petitioner is the highest bidder in the auction proceeding and the right has been created in favour of the petitioner, as such, the same cannot be annulled by way of an application under Section 285(H) of the U.P. Z.A & L.R. Rules filed by Anwar Ali who has no locus to file the application to set aside the auction. The provisions contained under Rule 285(H) is very much clear that the jurisdiction can be exercised under the aforesaid provisions if the amount is deposited by the person concerned. Since no amount has been deposited by the Anwar Ali, as such, by way of application under Rule 285(H) of the U.P. Z.A. & L.R. Rules, the auction cannot be set aside.
11. This Court in Ghan Shyam Singh (supra) has held that deposit of money is the pre-condition for filing the application for setting aside the sale otherwise application under Rule 285(H) of the U.P. Z.A. & L.R. Rules will not be maintainable.
12. In the present case, there was no deposit by respondent no.5 on the date of filing of application under Rule 285(H) of U.P. Z.A & L.R. Rules, the subsequent deposit, if any, by the respondent no.5 will not make the application under Rule 285(H) of the U.P. Z.A. & L.R. Rules maintainable coupled with the fact that respondent no.5 is stranger and had no locus to file application under Rule 285(H) of the U.P. Z.A. & L.R. Rules.
13. Considering the entire facts and circumstances of the case as well as the ratio of law laid down by this Court in Ghanshyam Singh (supra), orders dated 3.8.1995, passed by respondent no.1, 23.3.1992, passed by respondent no.2 and 6.8.1993 passed by respondent no.3 are liable to be set aside and the same are hereby set aside.
14. The writ petition stands allowed. The consequences in pursuance of auction took place on 22.3.1983 in favour of the petitioner will follow. No order as to costs.
Order Date :- 16.12.2022
C.Prakash (Chandra Kumar Rai, J.)
