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KISAN GRAMODYOG SANSTHAN BARIASANPUR, VARANASI AND OTHERS versus ADDL. COMMISSIONER, VARANASI AND OTHERS

High Court of Judicature at Allahabad

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Kisan Gramodyog Sansthan Bariasanpur, Varanasi And Others v. Addl. Commissioner, Varanasi And Others - WRIT - C No. 27292 of 1999 [2006] RD-AH 9883 (19 May 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 26

CIVIL MISC. WRIT PETITION NO. 27292 OF 1999

Kisan Gramodyog Sansthan, Bariasanpur, Varanasi and others

Versus

Addl. Commissioner, Varanasi, Division, Varanasi and others

----

HON. SHISHIR KUMAR, J.

By means of the present writ petition, the petitioners have approached this Court for issuing a writ of certiorari quashing the impugned order passed by the Additional Commissioner, Varanasi Division, Varanasi dated 19.5.1999 and quashing the confirmation of auction sale issued by the Sub Divisional Magistrate, Varanasi dated 21.9.1998.

Petitioner no.1 obtained certain loan from Union Bank of India. Petitioner no.3 is the father of petitioner no.1 and had given guarantee to the bank and the documents of agricultural land as security for the satisfaction of the bank. The petitioner no.1 could not deposit the loan, which was given to the petitioner no.1. As such the respondent bank initiated a proceeding for recovery of the said loan with interest. For recovery of the aforesaid amount on the basis of intimation sent by the bank, petitioner no.3 was arrested. In the mean time the property of the petitioner was auctioned and the sale of auction was confirmed on 18.9.1998. From the date of auction till the date of confirmation in spite of the notice, the petitioners have not made any objection for cancellation of the auction sale. It has been stated by the petitioners that they came to know regarding the said auction sale on 11.10.1998. The petitioners filed an application along with an application under Section 5 of Limitation Act and for stay before the Commissioner on 13.10.1998. When the respondents filed an objection, the Additional Commissioner without considering the case of the petitioners illegally dismissed the objection filed by the petitioners on the ground that the same is time barred and there is no sufficient reason for condoning the delay and the objection is not maintainable as the auction sale has already been confirmed. Aggrieved by the aforesaid order the petitioners filed a revision before the Board of Revenue. The petitioners have also filed a writ petition before this Court and this Court while entertaining the writ petition on 8.7.1998 has passed a detailed order.

The petitioners submit that the petitioners were given a liberty by this Court to deposit the total amount. In pursuance of the aforesaid direction, the petitioners have deposited the total amount and dispossession of the residential house of the petitioners in plot no. 583 was also stayed.

The contention of the petitioners is that as the petitioners have already deposited the total amount and the objection filed on behalf of the petitioners has not been considered and in view of the provisions of Section 333-A of the Zamindari Abolition and Land Reforms Act if an objection under Section 333-A is filed regarding the land, it is the responsibility and duty of the Court to frame an issue on the said question and the record should be sent to the Assistant Collector for the decision on that issue. Further submission has been made on behalf of the petitioners  that the petitioners were not having any knowledge regarding the auction proceeding as no notice or opportunity was given to the petitioners. As such when the petitioners came to know for the first time regarding the auction of the property of the petitioners, they immediately filed an objection but the objection of the petitioners has been rejected without deciding it on merit. It has been dismissed on the ground of limitation. Reliance has been placed by the petitioners in various judgment of this Court as well as the Apex Court. The petitioners have relied upon a judgment of this Court in Writ Petition 33380 of 1981 decided on 4.11.1992 Mohd. Yamin and others Vs. Commissioner, Meerut Division and has submitted that the objection filed by the petitioners, if any decision has been taken, it is open to the petitioners either to invoke the jurisdiction of revision or writ petition. Reliance has been placed on para 9 of the said judgment, which is quoted below:

"9. The application of the respondent No.2 before the Commissioner was not within 30 days from the date of sale but the Commissioner seems to have condoned the delay in the facts of the case.  The respondent No.2 was permitted by the Sub-Divisional Officer to deposit the amount and have the sale set aside.  This permission was granted by the Sub-Divisional Officer on 19.8.1990.  The same Sub-Divisional Officer confirmed the sale on 15.12.1990.  The Commissioner permitted the respondent No.2 to deposit the balance amount and thereafter set aside the sale.  The Commissioner seems to have acted in fairness, in as much as the authority of the Sub-Divisional Officer to conduct the sale or to perform any act with regard to the confirmation of sale was doubtful. The sale of the land of respondent No.2 was to be made either by the Collector in person or by an Asstt. Collector, specially appointed by him in this behalf. The collector is defined in Sec. 3 of the Act, which expression includes as Asstt. Collector first class empowered by the State Govt. by a notification in the Gazette to discharge all or any of the functions of the Collector under the Act.  The petitioners have not stated nor is there any material on record to infer that the Sub-Divisional officer was empowered by the State Government by a notification to discharge all or any of the functions of the Collector.  There is nothing on record to show that the Sub-Divisional Officer was specially appointed by the Collector for conduct of the sale.  So an Asstt. Collector, who conducts the sale, must have the following two qualifications:

(i)He must be empowered by the State Government by a notification in the Gazette to discharge all or any of the functions of the Collector;

(ii)He must be specially appointed by the Collector to conduct a sale under the rules.

Before the Sub-Divisional Officer exercises powers to conduct a sale, it is to be shown that the aforesaid two qualifications are possessed by the Sub-Divisional Officer."  

Another judgment relied upon by the counsel for the petitioners is reported in Allahabad Civil Journal 1992 Page 1262, Chandrika Singh Vs. Raja V.P. Singh and has submitted that if an objection is filed under Section 333-A, the matter has to be decided by the revenue court and the same cannot be decided by the civil court. Another judgment relied upon by the learned counsel for the petitioners is reported in Allahabad Civil Journal 2001 (SC) 174 in the case of Pezhumkattilahammedkutty Vs. C,M. Abdul Malick and others . Another judgment relied upon by the learned counsel for the petitioners is reported in 1995 A.W.C. Page 896,  Mahmood Ahmad Khan Vs. Ranbir Singh and others. In support of the aforesaid contention the petitioners submit that as the amount of 25% was accepted by the Auction Officer by cheque, therefore, in view of the aforesaid fact, the auction proceeding is vitiated. Another judgment reported in 2005 (98) RD Page 203, Bharat Singh Vs. State of U.P. and others has been relied upon. In support of the aforesaid judgment the petitioners' counsel submitted that an objection regarding auction sale was submitted under Rule 285 (1) as the same has not been considered for setting aside the auction sale, therefore, the total proceeding is vitiated. Further submission of the petitioners is that by virtue of the interim order the petitioners have already deposited the total amount, therefore, in the interest of justice the auction sale which has already been confirmed may be set aside and the petitioners may be given the possession of the property in dispute as the residential house of the petitioners as well as the tube well are situated in the said plot.

On the other hand counsel for the respondents at the very outset has argued that the present writ petition is liable to be dismissed only on the ground that the petitioners against the order passed by the Commissioner have filed a revision and were not able to obtain any order from the revisional court before the Board of Revenue and during pendency of the revision, they filed a writ petition before this Court and there is no mention in the wit petition that the revision is pending before the Board of Revenue. The present writ petition is liable to be dismissed only on the ground of concealment of the aforesaid fact.

Further submission made on behalf of the respondents is that as the petitioners have not deposited the amount taken as loan from the bank, after due notice and auction had taken place on 13.8.1998 and the answering respondents was the highest bidder and as such after depositing the said amount the petitioners have been given possession of the said property. It has further been submitted that for filing the objection, 30 days limitation is provided under the Act. As no objection was preferred by the petitioners, as such the auction sale was confirmed. Therefore, the objection filed subsequently after the confirmation of the auction sale has been dismissed by the Commissioner vide its order dated 19.5.1999. It has been submitted that the sale-deed has already been executed in favour of the auction purchaser and the same has been registered. In view of the aforesaid fact, the respondents submit that only on the basis of depositing the amount on the basis of the liberty given by this Court, the petitioners cannot be benefited.. It is well settled now that if the auction sale has been confirmed and no objection has been filed before confirmation of the sale, the same will not be entertained and is liable to be dismissed.

I have heard the learned counsel for the petitioners and the respondents. The Commissioner while considering the objection by the petitioners has recorded a detailed finding stating the dates regarding service of the notice of auction as well as a finding to this effect has been recorded that the petitioners tried their level best to postpone the auction sale. The petitioners have filed an application on 12.9.1998 and 17.9.1998. A finding to this effect has also been recorded that from the fact stated and from the application made by the petitioners it clearly goes to show that the petitioners were having the knowledge regarding the auction proceeding. But they have not submitted any objection within the time as provided under the Statute. Admittedly the objection has been filed after 30 days after confirmation of sale, therefore, the same was not maintainable.

The petitioners are also not entitled for any relief by this Court under the discretionary jurisdiction of this Court under Article 226 of the Constitution of India if a person before this Court has not come with clean hands. Admittedly the revision filed by the petitioners was pending before the Board of Revenue and the petitioners have approached this Court under Article 226 of the Constitution of India and that too without disclosing this fact that the revision filed by the petitioners against the order passed  by the Commissioner before the Board of Revenue is still pending. As regards the judgment cited by the petitioners, they are not applicable to the present case as in no case the Apex Court as well as this Court has held that if a person who has obtained a loan and is not in a position to pay the same and the property attached has been auctioned in his knowledge and before confirmation no objection was filed as provided under the Act and he permitted the proceedings to be finalized by way of confirmation of auction sale then if an aggrieved person has filed an objection, that has to be decided on merits and auction sale should be cancelled. The cases relied upon by the petitioner would have some force.  The petitioner on the basis of record was able to prove that petitioner was not having any knowledge of any proceeding like date of auction sale and confirmation.  No notice of auction was ever served upon him.  As soon as he came to know about the auction he filed an objection.  All these facts should have been proved from the record, then the petitioner can say that the objection should have been decided and considered on merits.  This has not been proved from the records so the decision cited by petitioners is of no help. The contention of the petitioners to this effect is also not acceptable that as the petitioners have already deposited the amount and the petitioners are ready to pay some more amount, in spite of the fact that auction sale which has been confirmed and sale deed has been executed and registered in favour of the auction purchaser, may be set aside. The cases cited by the petitioners are not applicable to the facts of the present case. If the contention of the petitioners is accepted then any auction sale which is confirmed by the competent authority, there will be no end of any proceeding and it cannot be finalized at any point of time and the auction purchaser will not accrue any right in spite of the fact that though he has paid total amount immediately after the auction has taken place, the same has been confirmed and a registered sale deed has been executed in favour of auction purchaser.

In view of the aforesaid fact, I see no infirmity in the orders passed by the respondents. The writ petition is devoid of merit and is hereby dismissed. No order as to costs.

19.5.2006

V.Sri/-  


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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