Dinesh Chandra Shukla vs Board Of Revenue And 6 Others
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Allahabad High Court

Dinesh Chandra Shukla vs Board Of Revenue And 6 Others on 20 March, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


			 Neutral Citation No:- 2025:AHC:40139
 
					         Court No. 50
 
						Reserved on: 27.2.2025
 
						Delivered on: 20.3.2025
 
				         WRIT - B No. - 1251 of 2022
 
Petitioner :- 			Dinesh Chandra Shukla
 
Respondent :- 			Board of Revenue and 6 Others
 
Counsel for Petitioner:- 	Mr. Vinod Kumar Upadhyay
 
Counsel for Respondent :- 	Mr. Ram Sajiwan Mishra, Mr. Tarun 					Gaur, standing counsel
 

 
Hon'ble Chandra Kumar Rai,J.
 

1. Heard Mr. Vinod Kumar Upadhyay, learned counsel for petitioner, Mr. Ram Sajiwan Mishra, learned counsel for respondent nos. 3 & 4 and Mr. Tarun Gaur, learned standing counsel for the state-respondents.

2. Brief facts of the case are that dispute relates to plot no.133, area 5 bigha 7 biswa 8 dhoor. The private respondent nos. 3 & 4 were advanced loan from Gram Vikas Bank Limited, Branch Jhinjhak, District Kanpur Dehat and on account of non-payment of loan, recovery proceeding was initiated against respondent nos. 3 & 4, namely, Girija Shankar, Rakesh Kumar and the mortgaged property was attached on 19.5.2005. Respondent nos. 3 & 4 along with one Shiv Shanker (now deceased) filed a Writ Petition No.44822 of 2005 in respect to the recovery proceeding initiated against them. This Court vide order dated 8.6.2005 disposed of the aforementioned writ petition with direction that in case the petitioner deposits a sum of Rs.50,000/- within a period of one month, no further proceeding shall be taken against the petitioner for a period of three months. The private respondents did not comply the order dated 8.6.2005 passed by this Court, accordingly, auction proceeding was initiated on 22.12.2005 but the same was cancelled vide order dated 24.3.2006. Fresh auction proceeding was initiated, accordingly, auction was conducted on 25.4.2006 and petitioner was the highest bidder in the auction conducted on 25.4.2006. The auction taken place on 25.4.2006 was approved by respondent no.6/Sub Divisional Magistrate, Rasoolabad vide order dated 25.5.2006. After approval of the aforementioned auction, sale deed was executed by respondent no.6/S.D.M., Rasoolabad on 26.5.2006. After execution of the sale deed in favour of the petitioner on 26.5.2006, a suit for declaration being O.S. No.159/2008 was filed by respondent nos. 3 & 4, impleading the bank and Collector, Kanpur Dehat as defendants, claiming the relief to declare the sale deed dated 26.5.2006 as illegal and ineffective. The aforementioned suit was dismissed for want of prosecution vide order dated 1.9.2010. After dismissal of the aforementioned suit, another suit was filed by respondent nos. 3 & 4 being O.S. No.486 of 2013 for permanent injunction. Respondent nos. 3 & 4 filed objection on 8.5.2014 under Rule 285(I) of the Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as the "U.P. Z.A. & L.R. Rules") along with prayer for condonation of delay. Petitioner filed objection to the aforementioned proceeding initiated under Rule 285(I) of the U.P. Z.A. & L.R. Rules by respondent nos. 3 & 4. Respondent no.2/Commissioner, Kanpur Division, Kanur vide order dated 21.4.2015 rejected the objection filed by respondent nos. 3 & 4 under Rule 285(I) of the U.P. Z.A. & L.R. Rules as barred by limitation. Respondent nos. 3 & 4 challenged the order dated 21.4.2015 by way of revision under Section 219 of the U.P. Land Revenue Act, 1901 before the Board of Revenue. The Board of Revenue vide order dated 29.4.2022 allowed the revision, set aside the order dated 21.4.2015 as well as cancelled the entire proceeding relating to the auction taken place in the matter. Hence, this writ petition for the following relief:-

(I) Issue a writ order or direction in the nature of certiorari quashing the impugned order dated 29.4.2022 passed by respondent no. 1 in Revision No. 1978 of 2015 (Girija Shankar and others Vs. Dinesh and others) (Annexure No. 14 to the writ petition).

(ii) Issue a writ or order direction in the nature of mandamus commanding and directing the respondents not to interfere in the peaceful possession of the petitioner over Gata No. 133 area 5-7-8, otherwise the petitioner shall suffer irreparable loss and injury.

3. This Court entertained the matter on 16.7.2002 and granted interim order, staying the operation of the impugned revisional order dated 29.4.2022. In pursuance of the order dated 16.7.2022, parties have exchanged their affidavits.

4. Counsel for the petitioner submitted that due to non-payment of the dues by the respondent nos. 3 & 4, recovery proceeding was initiated against them and auction sale took place in respect to the mortgaged property. He further submitted that the petitioner was the highest bidder in the auction sale proceeding. He further submitted that the auction was approved by the Sub Divisional Magistrate, accordingly, sale deed was executed in favour of the petitioner. He submitted that respondent nos. 3 & 4 initially filed a suit for declaration for declaring the sale deed as null and void but the suit was dismissed for non-prosecution. He also submitted that the second suit was filed for decree of permanent injunction which remained pending. He submitted that the objection under Rule 285(I) of the U.P. Z.A. & L.R. Rules has been filed after about 8 years which has been rightly dismissed on the ground of limitation. He submitted that the limitation provided for filing the objection under Rule 285(I) of the U.P. Z.A. & L.R. Rules is 30 days, as such, the objection cannot be entertained after 8 years in view of the fact that respondent nos. 3 & 4 were fully aware about the auction sale proceeding. He submitted that the Commissioner has rightly rejected the objection of the respondent nos. 3 & 4 but the revisional court/Board of Revenue has exceeded his jurisdiction in setting aside the order of the Commissioner as well as the entire auction sale proceeding. He further submitted that in view of the sale deed executed in favour of the petitioner being the highest bidder in the auction sale proceeding, the name of the petitioner was recorded in the revenue records and the petitioner came in exclusive possession of disputed plot on 26.6.2006. He submitted that the impugned revisional order dated 29.4.2022 should be set aside and the order of the Commissioner dated 21.4.2015 should be affirmed.

5. On the other hand, Mr. Ram Sajiwan Mishra, learned counsel for respondent nos. 3 & 4 submitted that there is no illegality in the order of the Board of Revenue in setting aside the entire auction sale proceeding. He submitted that the objection under Rule 285(I) of the U.P. Z.A. & L.R. Rules filed by respondent nos. 3 & 4 was dismissed on the ground of limitation, however, the application for condonation of delay under Section 5 of the Limitation Act was filed before the Commissioner. He submitted that due to unavoidable circumstances, respondent nos. 3 & 4 could not deposit the loan amount. He further submitted that notice/form no.74 under the U.P. Z.A. & L.R. Act was not served upon respondent nos. 3 & 4, as such, auction sale has been rightly cancelled by the Board of Revenue by passing the impugned revisional order. He submitted that respondent nos. 3 & 4 were not aware about the auction conducted on 25.4.2006. He further submitted that delay in filing the objection under Rule 285(I) of the U.P. Z.A. & L.R. Rules has been caused due to ill-advice given to respondent nos. 3 & 4 to file the suit before the civil court, as such, the objection under Rule 285(I) of the U.P. Z.A. & L.R. Rules cannot be rejected on the ground of limitation. He further submitted that provision of Section 5 of the Limitation Act is applicable in the proceeding under Rule 285(I) of the U.P. Z.A. & L.R. Rules, as such, respondent nos. 3 & 4 were entitled for the benefit of Section 5 of the Limitation Act in filing the objection under Rule 285(I) of the U.P. Z.A. & L.R. Rules but the Commissioner has illegally rejected the objection of the respondent nos. 3 & 4 on the ground of limitation. He submitted that the answering respondent nos. 3 & 4 are still in physical possession over the land in dispute, as such, no right will accrue in favour of petitioner. He further submitted that due to the violation of the mandatory provisions contained under Rule 285(I) of the U.P. Z.A. & L.R. Rules for conducting the auction of the mortgaged property, the auction sale conducted in respect to the property of respondent nos. 3 & 4 cannot be sustained in the eye of law. He submitted that no interference is required against the impugned order dated 29.4.2022 and the writ petition is liable to be dismissed. He also placed reliance on the decision of this Court in the case of Pravesh Kumar Sachdeva vs. State of U.P. and Others (Civil Misc. Writ Petition No.76863/2005), decided on 23.3.2006 in support of his argument.

6. I have considered the arguments advanced by learned counsel for the parties and perused the records.

7. In order to appreciate the controversy involved in the matter, the perusal of Rules 285(H), 285(I), 285(J) and 285(K) of the U.P. Z.A. & L.R. Rules will be relevant which are as under:-

"[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.]

285-I. (i) At any time within thirty days from the date of the sale, application may be made to the Commissioner to set aside the sale on the ground of some material irregularity or mistake in publishing or conducting it; but no sale shall be set aside on such ground unless the applicant proves to the satisfaction of the Commissioner that he has sustained substantial injury by reason of such irregularity or mistake.

(ii) [* * *]

(iii) The order of the Commissioner passed under this rule shall be final.

285-J. On the expiration of thirty days from the date of the sale if no such application as is mentioned in Rule 285-H or Rule 285-I, has been made or if such application has been made and rejected by the Collector or the Commissioner, the Collector shall pass an order confirming the sale after satisfying himself that the purchase of land in question by the bidder would not be in contravention of the provisions of Section 154. Even order passed under this rule shall be final.

285-K. If no application under Rule 285-I is made within the time allowed therefor, all claims on the ground of irregularity or mistake in publishing or conducting the sale shall be barred:

Provided that nothing contained in this rule shall bar the institution of a suit in the Civil Court for the purpose of setting aside a sale on the ground of fraud.

8. The perusal of the provisions as quoted above fully demonstrate that the objection under Rule 285(I) is to be filed within a period of 30 days from the date of the sale and on the expiration of 30 days, the Collector shall confirm the sale and in case no application under Rule 285(I) is made within a period of 30 days, all claims on the ground of irregularity or mistake in publishing or conducting the sale shall be barred but a suit in the civil court for the purpose of setting aside a sale on the ground of fraud can be maintained.

9. In the instant matter, the sale was conducted in the year 2006, which was confirmed by the competent authority, accordingly, the sale deed was executed in favour of the petitioner in the year 2006. Respondent nos. 3 & 4 were fully aware about the aforementioned proceeding and initially they filed a civil suit for declaration with respect to the sale deed in question and after 8 years the objection under Rule 285(I) of the U.P. Z.A. & L.R. Rules has been filed which is abuse of process of law. The filing of the objection under Rule 285(I) of the U.P. Z.A. & L.R. Rules after 8 years inspite of the full knowledge of sale and the execution of the sale deed in favour of the petitioner is wholly illegal.

10. It is also material that petitioner was the highest bidder in the auction sale conducted in the year 2006 and sale deed was accordingly executed in favour of the petitioner, as such, the right created in favour of the petitioner, cannot be annulled on the basis of highly time-barred proceeding initiated by the petitioner.

11. The Board of Revenue has exceeded his revisional jurisdiction while passing the impugned revisional order in setting aside the order of Commissioner, dismissing the objection under Rule 285(I) of the U.P. Z.A. & L.R. Rules on the ground of limitation as well as cancelling the entire proceeding of auction sale, as such, the impugned order passed by the Board of Revenue cannot be sustained in the eye of law.

12. So far as the judgment cited by learned counsel for the petitioner in Pravesh Kumar Sachdeva (supra) is concerned, the same was set aside by Hon'ble Apex Court vide judgment dated 13.9.2018 in Civil Appeal No.9836 of 2014 (Pravesh Kumar Sachdeva vs. State of Uttar and Others). Paragraph Nos. 19 to 25 of the judgment of Hon'ble Apex Court in the case of Pravesh Kumar Sachdeva (supra) will be relevant for perusal which are as under:-

19. We also find that the conduct of all the private respondents is a clear indication of their acceptance of the validity of the auction sale. It has come on record that the auction sale resulted in a sale price which was over and above the dues and liabilities of the private respondents by an amount of about Rs. 14 lakhs. Through applications filed by the private respondents on 11th January, 2005 and 25th January, 2005 requests were made for being given back the excess amount raised by the auction sale. In fact this request was acceded to and the amount was given back to the private respondents by the Competent Authority. It appears that the present litigation is being fought by the private respondents on the basis of the amounts received by them from the Competent Authority. In any event, the conduct of the private respondents is a clear indication, if any is required, that they had no objection to the auction sale.

20. Through their conduct, in failing to file objections to the auction sale and making an application and accepting the excess amount recovered from the auction sale, the private respondents have waived off their rights in respect of the auction sale and have acquiesced in the auction sale. Today, the private respondents are estopped through their conduct from challenging the auction sale in any manner whatsoever.

21. In Waman Shriniwas Kini v. Ratilal Bhagwandas & Co. it was observed as follows:

"Waiver is the abandonment of a right which normally everybody is at liberty to waive. A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right. It may be deduced from acquiescence or may be implied."

22. In Municipal Corporation of Greater Bombay v. Dr Hakimwadi Tenants' Association it was held that "In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case."

23. Finally, in P. Dasa Muni Reddy v. P. Appa Rao this Court held:

"...Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. ..... The doctrine which the courts of law will recognise is a rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of courts."

24. We are of the clear opinion that in view of the law, the High Court erred in ignoring the basic and primary facts on record and setting aside the auction sale in favour of Sachdeva, and thereby also prejudicing Pawan Kumar Agarwal.

25. Under the circumstances, the appeals are allowed and the impugned judgment and order passed by the Allahabad High Court on 23rd March, 2006 is set aside."

13. Considering the entire facts and circumstances, the impugned order dated 29.4.2022 passed by respondent no.1 in Revision No.1978 of 2015 cannot be sustained in the eye of law and the same is liable to be set aside, accordingly, the impugned order dated 29.4.2022 is hereby set aside.

14. The writ petition stands allowed and the authorities are directed to record the name of the petitioner over the plot in question on the basis of sale deed executed by State in favour of the petitioner.

15. No order as to costs.

Order Date :- 20.3.2025

C.Prakash

(Chandra Kumar Rai, J.)