Prithvi Pat vs State Of U.P. And Others
2023 Latest Caselaw 26919 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:191305
 

 
Court No. - 5
 

 
Case :- WRIT - C No. - 10409 of 1998
 

 
Petitioner :- Prithvipat (deceased) and others
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :-Manjari Singh
 
Counsel for Respondent :C.S.C.
 

 
HON'BLE PIYUSH AGRAWAL, J. 

1. Case is called in revised turn. None appears on behalf of respondent nos. 5, 6 and 7.

2. Heard Mrs. Manjari Singh for the petitioner and Mr. Nand Lal Maurya, learned Standing Counsel for State- respondent nos. 1 to 4.

3. By means of this writ petition, the petitioner is assailing the order dated 7.3.1998 passed by respondent no. 3 whereby an application filed by the petitioner under Section 285 (1) of U. P. Zamindari Abolition and Land Reforms Act (herein after referred to as the Act), has been rejected on the ground of limitation.

4. Brief facts of the case are that petitioner no. 1 has taken some loan from respondent -Bank i.e. Punjab National Bank, Lalipur Branch but he could not repay the same within time, therefore, the respondent bank has sent recovery citation which was forwarded by the Tehsildar and due proclamation of sale of plot no 1505 area 5 acre and plot no. 1508 area 0.46 acre was made on 5.2.1986. Thereafter on advice of Advocate, the petitioner filed an objection under section 285 (1) of the Act before the Collector against the alleged sale proclamation dated 5.2.1986 but the same was rejected on 26.7.986 on the ground that same is not maintainable. Thereafter petitioner has moved a fresh application before the Commissioner under Section 285 (1) of the Act along with application under Section 5 of Limitation Act but the same has been rejected vide order dated 19.2.1987 on the ground that provisions of Section 5 of the limitation Act did not apply in the said proceedings. Thereafter against the said order the petitioner preferred Writ Petition No. 5212 of 1987 before this Court, which was allowed vide order dated 4.9.1997 and matter was remanded for fresh decision on the application under Section 5 of the Limitation Act however after remand the Commissioner vide order dated 7.3.1998 has again rejected the application under Section 285 -I by the impugned order dated 7.3.1998 on the ground that wrong legal advice is not a ground for condonation of delay. Hence the present petition.

5. Learned counsel for the petitioner submits that due to wrong advise of the Advocate, an application under Section 285 (1) of the Act was filed before the Collector but the same was rejected on the ground of maintainability, however, a proper application was moved before the Commissioner stating therein the reason of delay in filing the same but the same was also rejected.

6. She further submits that there is material irregularity in publishing the auction notice as on 23.1.1986, Form ZA-74 was served upon the petitioner which is mandatory requirement. As per Rule 285 A, the auction can only be held after expiry of 30 days from the date of issuance of Form ZA-74 but the same was held on 5.2.1986 prior to expiry of the prescribed period, therefore, the proclamation as well as sale is illegal. She further submits that delay condonation application has been rejected on the ground that mistake of his counsel is not a tangible ground and objection ought to have been filed within time prescribed under limitation.

7. She submits that during pendency of the present petition, the repayment of the loan in question has been made and the bank has issued no dues certificate in favour of the petitioner.

8. She further submits that the sale has not yet been confirmed as the same was stayed by this Court vide order dated 9.4.1998 and possession of the property in question was also not handed over to respondent nos. 6 and 7 and the said fact is also apparent from para -6 of the counter affidavit received on 5.10.1998.

9. In support of her arguments, learned counsel for the petitioner has relied upon the judgement of Supreme Court in (i) Mata in Vs. A. Narayanan, AIR 1970 SC 1953, (ii) State of West Bengal Vs. Administrate Howrah Municipality and others, AIR 1972 SC 749, (iii) Davinder Pal Sehgal and others Vs. Partap Steel Rolling Mills Pvt. Litd and others, AIR 2005 SC 451, (iv) Valji Khimji and Company Vs. Official Liquidator of Hindustan Nitro Product Ltd. And others, (2008) 9 SCC 299 and this Court in (v) Baldeo @ Baldeva and others Vs. State of U.P. and others Writ C No. 45853 of 2005 decided on 18.8.2011, (vii) Suresh Tiwari Vs. Commissioner, Varanasi 2013 (1) ADJ 691 and (viii) Application U/s 482 43088 of 2019 (Lallu Khan and others Vs. State of UP and others) decided on 4.12.2019. He prays for allowing the writ petition.

10. Per contra, learned Standing Counsel supports the impugned order and submits that delay condonation application was not supported by an affidavit or any cogent material has been filed in support his claim. He further submits that petitioner had not repay the loan within time therefore auction has rightly been made. He further submits that notice of the auction of the land in question was made to petitioner, therefore there is no illegality in it. He prays for dismissal of the writ petition.

11. After hearing learned counsel for the parties, the Court has perused the records.

12. On perusal of the records, it shows that during pendency of the present writ petition, the repayment of the loan has been made by the petitioner and respondent bank has also issued no-dues certificates in favour of the petitioner in this respect, copy of which has also been brought on record by way of supplementary affidavit filed on 4.8.2013 as Annexure no. S.A.-1 of the supplementary affidavit and no rebuttal of the same has been filed by any of the respondents till date. Therefore, it appears that till date there is no outstanding amount of loan is pending against the petitioner. The bank is only interested in recovery of its loan amount and if the loan has been paid in the year 2013 itself and thereafter no dues certificate has also been issued by the respondent bank in favour of the petitioner.

13. The petitioner has moved an application under Section 285-I of the Act before the Collector under wrong advise of his counsel which was rejected by the Collector and within 30 days of the rejection, an appropriate application along with application for condonation of delay has been filed before the Commissioner in which specific grounds have been taken but the same was also rejected. After remand by this Court the Commissioner again rejected the application on the ground that plea of wrong advise of Advocate, is not a sufficient ground for condonation of delay. When the grounds shown along with the application is sufficient then it was not necessary to support the application along with separate affidavit.

14. Hon'ble the Apex Court in the case of Mata Din (supra) has held as under :-

6. The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. The High Court unfortunately never considered the matter from this angle. If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation.

15. Again in State of West Bengal Vs. Administrate Howrah Municipality and others (supra) Hon'ble the Apex Court has held as under :-

37. On behalf of the appellant it had been categorically stated in the affidavit filed in support of the applications under Section 5 of the Limitation Act, to excuse the delay, that when the objections filed by the State under Section 47 C.P.C. regarding executability of the Award in the Land Acquisition Cases were dismissed on January 30, 1965, the matter was referred to the Legal Remembrancer, West Bengal, for taking necessary action. It has been further stated that it was on March 4, 1965, that it became known that the judgment of the Addl. District Judge, dated September 21, 1963 in the three Land Acquisition Cases had not been appealed from. It must be noted that the objections to the execution were filed by the State in Reference No. 21 of 1958, which was one of the cases covered by the judgment of the Addl. District Judge, and in which execution was taken for realising the compensation amount. It has been further stated that the counsel for the State in the High Court pursued all the papers and consulted the officers of the Land Acquisition Department, Howrah, to consider the steps to be taken to challenge the decision of the Addl. District Judge in the Land Acquisition Reference Cases. It was only on April 15, 1965, that the State was advised by its lawyer in the High Court to move applications under Article 227 of the Constitution to quash the judgment of the Addl. District Judge in the Land Acquisition Reference Cases. Admittedly, writ petitions under Article 227 were filed on May 17, 1965, in which the High Court granted stay of execution of the decree under the Award. We have already referred to the fact that these writ petitions were kept pending till September 28, 1966. It may be, that the State was not properly advised regarding the remedy to be adopted to challenge the judgment in the Land Acquisition Reference Cases. But, as pointed out by the Judicial Committee in Kunwar Rajendra Singh v. Rai Rajeshwar Bali and Ors. , if a party had acted in a particular manner on a wrong advice given by his Legal Adviser, he cannot be held guilty of negligence so as to disentitle the party to plead sufficient cause under Section 5 of the Limitation Act. In fact the Judicial Committee observes as follows:

Mistaken advice given by a legal practitioner may in the circumstances of a particular case give! rise to sufficient cause within the section though there is certainly no general doctrine which saves parties from the results of wrong advice.

38 . The advice given by the lawyer to file applications under Article 227, in our opinion, is also a circumstance to be taken into account in considering whether the appellant has shown sufficient cause.

16. Hon'ble the Apex Court in the case of Davinder Pal Sehgal and others (supra) has held as under:-

6. Learned counsel appearing on behalf of the appellants submitted that the grounds for restoration as well as condonation of delay were fully enumerated in the restoration application, a rejoinder whereto was filed and the trial court while passing the order for restoration, having considered facts stated in the restoration application and rejoinder and being satisfied with the cause shown in the restoration application would be deemed to have condoned the delay in filing the restoration application as such the High Court was not justified in interfering with the order of the trial court as there was no error of jurisdiction therein. On the other hand, learned counsel appearing on behalf of the respondents submitted that this Court should not interfere with the impugned order as the application for restoration was earlier dismissed for non prosecution.

7. We have perused the restoration application as well as petition filed under Section 5 of the Limitation Act for condonation of delay in filing the same. It appears that in the application for restoration, all relevant facts have been stated not only to show that the plaintiffs had sufficient cause for non appearance on 24th August, 1988 but also to show sufficient cause for condonation of delay in filing the restoration application. This is the reason why in the petition for condonation of delay, it has been simply stated that facts stated in the restoration application may be taken into consideration for condonation of delay in filing the restoration application. Therefore, merely because in the order of trial court, specifically, there is no reference to petition for condonation of delay, it cannot be said that it did not consider the same. From a bare perusal of the order, it would appear that the grounds stated in the restoration application for non appearance on 24th August, 1988 as well as delay in filing the restoration application having found favour with the trial court, the suit has been restored, therefore, it cannot be said that the order of restoration has been passed without condoning the delay in filing the restoration application. The submission of the learned counsel appearing on behalf of the respondents that application for restoration filed on behalf of the plaintiffs was dismissed earlier for non prosecution cannot be taken to be a ground for throwing out the restoration application as the High Court on the earlier occasion set aside order of the trial court whereby restoration application was dismissed for non prosecution and the said order attained finality. In view of these facts, we are of the opinion that trial court had not acted in the exercise of its jurisdiction illegally or with material irregularity and accordingly the High Court was not justified in interfering with its order in the exercise of revisional jurisdiction.

17. Supreme Court in the case of Valji Khimji and company (supra) has held as under:-

35. In the first case mentioned above, i.e. where the auction is not subject to confirmation by any authority, the auction is complete on the fall of the hammer, and certain rights accrue in favour of the auction purchaser. However, where the auction is subject to subsequent confirmation by some authority (under a statute or terms of the auction) the auction is not complete and no rights accrue until the sale is confirmed by the said authority. Once, however, the sale is confirmed by that authority, certain rights accrue in favour of the auction purchaser, and these rights cannot be extinguished except in exceptional cases such as fraud.

36. In the present case, the auction having been confirmed on 30.7.2003 by the Court it cannot be set aside unless some fraud or collusion has been proved. We are satisfied that no fraud or collusion has been established by any one in this case.

18. This Court in the case of Lalloo Khan (supra) has held as under :-

Learned counsel for applicants vehemently contended that application moved under Section 5 Limitation Act was not supported with affidavit therefore it was argued that it was illegally allowed by the court below but when the court is satisfied that ground mentioned in the application was sufficient for filing the appeal beyond 12 days from the limitation then it was not necessary to support the application with a separate affidavit. In the case of Davinder Pal Sehgal & Another Vs. M/s. Pratap Steel Rolling Mills reported in A.I.R. 2001 SC 451, Hon'ble Apex Court has held that even separate application for condonation of delay is not necessary for condoning the delay.

19. This Court in the case of Baldeo @ Baldeva (supra) has held as under:-

35. The next question is whether Rule 285-A was followed or not which contemplates a notice period of 30 days between the date of issuance of the sale proclamation and the date of auction.

36. In the counter affidavit filed on behalf of the respondents 1 to 4 it is said that property in question was attached on 9th January, 1996 by issuing Z.A. Form 73-73D. The said proclamation was issued on Z.A. Form 74 on 30th January, 1996 fixing 9th March, 1996. No auction took place on 9th March, 1996 due to the order dated 1st March, 1996 passed by this Court in Writ Petition No.8014 of 1996. Thereafter fresh sale proclamation was issued on 1st June, 1996 fixing 1st July, 1996. The auction was postponed and the next date fixed on 6th August, 1996. Again it was postponed. It is said that ultimately a fresh sale proclamation was issued on 26th December, 1996 fixing 27th January, 1997. The sale proclamation was duly served upon the defaulters namely the petitioners and auction was held on 27th January, 1997. Annexure C.A.3 to the counter affidavit shows that sale proclamation though issued on 26th December, 1996 but the endorsement with regard to service is dated 23rd January, 1997/27th January, 1997. The auction was also held on 27th January, 1997. Whether it can be said that Rule 285-A has been observed in the case in hand or not. The Apex Court has considered this issue in State of U.P. & Ors. Vs. M/s Swadeshi Polytex Ltd. & Others, 2009 (107) RD 22 and in para 14 of the judgment relying on an another decision in S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar 2004 (56) ALR 115 (SC) the Apex Court held that such an auction would be illegal and inconsistent with the procedure prescribed in Rule 285 and 285-A.

37...

38. In the case in hand, before holding auction, there is no clear thirty days of notice, inasmuch as, sale proclamation itself was served upon the petitioners on 23/27th January, 1997, it cannot be said that a due notice was given as provided in statute.

20. In view of the aforesaid law laid down by this Court as well as Supreme Court, the impugned order cannot be sustained in the eyes of law.

21. In the results, the writ petition succeeds and is allowed. The impugned order dated 7.3.1998 is set aside. Since the matter is lingering from 1986, no useful purpose will be served in remanding the matter, once interest of bank is save as stated above that all outstanding dues are cleared off by the petitioner.

22. The respondent authority is hereby directed to release the amount if any deposited by respondent nos. 6 and 7 in pursuance of proclamation dated 5.2.1986 within period of 15 days from the date of production of certified copy of this order. It is further provided that after releasing the money to the private respondent nos. 6 and 7, the respondent authority shall also release the land in question in favour of the petitioner within another period of 15 days thereafter.

Order Date :-    4.10.2023
 
Rahul Dwivedi/-