CASE NO.: Appeal (civil) 3361 of 2005 PETITIONER: Kedar Nath Dubey (D) By Lrs. & Ors RESPONDENT: Sheo Narain Dubey (D) By Lrs. & Ors DATE OF JUDGMENT: 12/05/2005 BENCH: ARIJIT PASAYAT & S.H. KAPADIA JUDGMENT:
J U D G M E N T
(Arising out of SLP(C) No.24424/2004)
ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the decision by a
learned Single Judge of the Allahabad High Court holding
that the auction sale on 18.8.1989 and confirmation thereof
was illegal. Kedar Nath Dubey, the predecessor of the
appellant was the successful bidder. Objection filed by Sheo
Narain Dubey, the predecessor of non-official respondents
was rejected by order dated 18.8.1989.
A brief reference to the factual aspects would suffice.
The writ petitioner, Sheo Narain Dubey, the predecessor
of non-official respondents had taken a loan for purchasing
pumping set from U.P. State Sahkari Agricultural Avam Gram
Vikas Bank Limited, Salenpur, Deoria. As the said loan was
not repaid within the stipulated time, proceedings were
initiated for recovery of amount as arrears of land revenue
under the Uttar Pradesh Zamindari Abolition and Land Reforms
Act, 1950 (in short ‘the Act’). Land belonging to the writ
petitioner was auctioned on 18.8.1989. Bid of Kedar Nath
Dubey, the predecessor of the present appellant was
accepted. Sheo Narain Dubey filed objection under Rule
285(I) of the Uttar Pradesh Zamindari Abolition and Land
Reforms Rules, 1953 (in short ‘the Rules’). The stand taken
was that there was material irregularity in the service of
notice as well as in conducting the sale and thereby Rule
285(A) of the Rules had been violated. The said objection
was rejected and the sale was confirmed. The writ petition
was filed in 1991. Mutation proceedings had been undertaken
in the meantime by Kedar Nath. In the counter affidavit
filed before the High Court, stand taken was that the order
of the concerned authority i.e. the Commissioner, Gorakhpur
Division, Gorakhpur dated 7.1.1991 clearly indicated that
the plea of the writ petitioner was untenable. When the
amount alongwith interest and other dues were not paid, the
bank had requested for recovery proceedings. Form 73 and
Form 73 A were sent to the writ petitioner which were
personally served. Thereafter date of auction was fixed on
18.8.1989 and the request notice was duly served. As Kedar
Nath Dubey was the highest bidder, his bid was accepted.
Considering the materials on record it was found that the
requisite procedure and the prescribed rules had been
followed and there was no necessity for interfering in
auction. It was indicated that the loan account had already
been closed on 5.2.1991 as the entire amount had been
recovered by sale of the land. It was highlighted with
reference to the order dated 7.1.1991 that Sheo Narain Dubey
was a habitual loan taker and had defaulted on many
occasions in re-paying the loans. The writ petitioner filed
a rejoinder affidavit stating that there was no compliance
with the requirements of confirmation. The writ petitioner’s
stand was that he wanted to deposit the amount on 1.5.1991
but the same was not accepted and, therefore, he approached
Additional District Magistrate (in short the ‘ADM’) to
direct the Tehsildar, Salempur to accept the amount and the
amount had been deposited on 6.5.1991.
Primary stand before the High Court was that the
prescribed Rules were not followed, and in any event the
auction sale was confirmed by the Sub-Divisional Magistrate
(in short the ‘SDM’) who did not have the authority to
confirm the sale or conduct the sale. The confirmation was,
according to the writ petitioner, by an incompetent
authority and, therefore, the entire proceeding was invalid.
The High Court took the view that the application filed by
the writ petitioner for setting aside the auction sale was
full of vague and evasive statements relating to the
allegation that the norms laid down in Rule 285(I) were not
confirmed and there was material irregularity. The High
Court, therefore, held that the Commissioner was right in
holding that the order passed by the Commissioner did not
suffer from any infirmity. However, it was held that the
crucial issue was that the Collector is the authority to
confirm the sale. In this context reference was made to
Rules 285-A, 285-H, 285-I, 285-J, 285-K and 285-L and it was
held that under Rules 284 and 285 the confirmation of the
sale has to be done either by the Collector in person or by
an Assistant Collector specifically appointed by him in that
behalf. It was held that the SDM did not have any authority.
A reference was made to a Notification dated 17.1.1976 to
conclude that the Assistant Collectors of the First Class
who are in charge of the Sub Division can discharge the
function of the Collector subject to the condition that the
sales are approved by the Collector. The High Court was of
the further view that except power of approval of sale, the
SDM has every other power of Collector. It was, therefore,
held that the Collector alone is empowered to confirm the
sale and issue sale certificate. The Assistant Collector is
not authorized in that behalf in view of the scheme of the
Rules as indicated in the notification dated 17th January,
1976.
In support of the appeal, learned counsel for the
appellant submitted that the High Court considered a new
ground of challenge which is impermissible. After having
noticed that the respondents did not make out a case for
interference in terms of Rule 285-H it proceeded to consider
an issue which was not even pleaded in the Writ Petition.
High Court erroneously made reference to 17th January,
1976 notification without noticing that other notifications
which held the field clearly indicated that the Sub-
Divisional Officer has the power to accord approval to the
auction sale. Particular reference in this regard was made
to Notification dated 11.6.1953 and letter of the Secretary,
Revenue Board U.P. dated 7.7.1983. As the Writ Petitioner
rested its case on Rule 285-I and the High Court did not
find anything irregular in the order of the Commissioner
holding that the provision to Rule 285-I had been complied
with, no interference by the High Court was called for.
In response, learned counsel for the non-official
respondents submitted that the question of confirmation was
intermittingly linked with the question of legality of the
auction which was impugned. According to him the High
Court’s order does not suffer from any infirmity to warrant
any interference. Rules 285-A, 285-H, 285-I, 285-J, 285-K
and 285-L read as follows:
“285-A Every sale under Sections 284 and
285 shall be made either by the Collector in
person or by an Assistant Collector specially
appointed by him in this behalf. No such
sale shall take place on a Sunday or other
gazetted holiday, or until after expiration
of at least thirty days from the date on
which the proclamation under Rule 282 was
issued.
285-H Any person whose holding or other
immovable property has been sold under the
Act, he 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% of the purchase money;
and
(b) for payment on account of arrears,
the amount specified in the
proclamation in Z.A. Form 74 for
recovery of which 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 cost 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
285-I to set aside such sale he shall not be
entitled to make an application under this
rule.
285-I (i) At any within thirty days from
the date of 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) deleted.
(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 every order
passed under this rule shall be final.
285-K If no application under Rule 285-I is
made within the time allowed therefore, 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.
285-L Whenever the sale of any holding or
other immovable property is set aside under
Rule 285-H or Rule 285-I the purchaser shall
be entitled to receive back his purchase
money plus an amount not exceeding five
percent of the purchase money as the
Collector or the Commissioner, as the case
may be, may determine.”
At this juncture, it would be necessary to take note of
the Notification dated 11.6.1953 issued by the Revenue
Department and published in U.P. Gazette dated 13.6.1953.
The Notification dated 11.6.1953 reads as follows:
“Revenue Department Notification No.
1756/1A-1073-53 dated June 11, 1953,
published in U.P. Gazette dated June 13,
1953:
In exercise of the powers conferred
by clause (4) of Section 3 of the
Uttar Pradesh Zamindari Abolition
and Land Reforms Act, 1950 [(Act 1
of (1951)], the Governor is pleased
to empower all the Sub Divisional
Officers in Uttar Pradesh except
those in the districts of Almora,
Garhwal, Tehri Garhwal and Rampur
to discharge all the functions of a
“Collector” under the said Act.”
The Notification makes the position clear that in all
the districts of Uttar Pradesh except districts of Almora,
Garhwal, Tehri Garhwal and Rampur SDOs were authorized to
discharge all the functions of the Collector under the Act.
A bare reading of the Notification dated 11.6.1953 as
published in the official gazette dated 13.6.1953 shows that
it empowered all SDOs in Uttar Pradesh except those in the
enumerated districts to discharge all the functions of the
Collector under the Act. Letter of the Secretary, Revenue
Board, U.P. dated 7.7.1983 also throws light on the
controversy. It related to discharge of power under various
provisions of the Act. It noted that by notification of
5.12.1968 Sub-Divisional Officers have been authorized to
discharge all functions of the Collector under the Act
except Section 198. Prima facie the stand of the appellant
is correct. It appears that these pleas were not considered
by the High Court. We remit the matter to the High Court for
considering it in accordance with law. We make it clear that
no opinion has been expressed by us on the merits of the
case. The High Court may dispose of the matter as
expeditiously as possible as the writ petition is pending
for more than a decade. It would be proper for the High
Court to hear the matter afresh and take a decision on the
various issues involved, as there are certain vital
questions which were not considered by the High Court. The
effect and relevance of the notification dated 11.6.1953 and
the letter dated 7.7.1983 shall be considered.
Appeal is disposed of in the aforesaid terms with no
orders as to costs.
