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Smt. Prem Wati Devi v. Up Zila Adhikari Iglas, Aligarh & Others - WRIT - C No. 9281 of 1997 [2003] RD-AH 64 (28 March 2003)


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Smt Prem Wati ----- Petitioner


Up Jila Adhikari/Sub Divisional Officer,

Iglas, District Aligarh & ors. -----       Respondents.


Hon'ble Dr. B.S.Chauhan, J.

This writ petition has been filed against the order dated 4.3.1997, passed by Up Jila Adhikari, Iglas, District Aligarh (Annexure ''8') rejecting the application to recall the order dated 16.10.1996, by which contesting respondent no. 3 had been permitted to deposit the amount in terms of the order of this Court dated 26.7.1996.

Facts and circumstances giving rise to this case are that respondent no. 3 had taken loan from the Bank and as the same could not be paid, his properties were auctioned. Petitioner is a bona fide auction purchaser for consideration of the land in dispute, measuring 2 bighas, 9 biswas, 8 biswansis of Khata No. 99, situate in the revenue estate Nagla Madho, District Aligarh. Auction had taken place on 18.3.1985 and petitioner being the highest bidder for a sum of Rs.11,200/-, was asked to deposit 1/4th amount immediately and 3/4th within 15 days thereafter as it was the terms of auction. The petitioner had deposited the said amount accordingly and was put in possession of the land. Respondent no. 3 filed objection under Rule 285 (I) of U.P.Z.A.& L.R.Rules before the Commissioner who dismissed the same vide order dated 24.9.1985 (Annexure ''1'). Being aggrieved, respondent no. 3 filed Writ Petition No. 17186 of 1985 before this Court and the same was disposed of finally vide order dated 26.4.1996 (Annexure ''2'). There was some confusion in the order and a correction was sought which was made vide order dated 26.7.1996 (Annexure''3'), and respondent no. 3 was directed to deposit the amount within a period of six weeks from 26.4.1996. The respondent no. 3 did not comply with the order. However, deposit of the said amount was not made within the period of six weeks. The Bank Draft itself was made at a belated stage which has been accepted by the Sub Divisional Officer on 16.10.1996.

The application of the petitioner to recall the order dated 16.10.1996 being in contravention of the High Court's order has been dismissed vide order dated 4.3.1997 of the Up Jila Adhikari holding that he had no power to recall the order, hence this petition.

Learned counsel for the petitioner has submitted that once this Court had passed an order to allow the respondent no. 3 to deposit the amount within a stipulated period of six weeks and the said amount had not been deposited, there was no competence with the authority concerned to accept the amount after expiry of that period. Even the correction sought by the respondent no. 3 did not change the nature of the order or extend the time nor respondent no. 3 ever sought extension of time to deposit money. Therefore, the money could not have been deposited.

On the contrary, it has been submitted by the learned counsel for the respondent that even if the money has been deposited at a belated stage, that does not require any interference by this Court.

I have considered the rival submissions made by the learned counsel for the parties and perused the record.

The judgment and order dated 26.4.1996 passed by this Court clearly provides that the respondent no. 3 would make a representation before the Bank to find out the outstanding dues and all the payments shall be made along with the interest and recovery charges within a period of six weeks. The Court further observed as under:-

"In case of default in depositing any of the amount or taking any of the steps mentioned hereinabove by the petitioner within time stipulated, this order shall stand recalled and the order dated 24th September, 1985 and the auction held on 18th March, 1985 shall stand confirmed, and this writ petition shall stand dismissed without any further intervention of this Court."

Respondent no. 3 subsequently moved an application for correction as there was some confusion with the time given for completing different steps did not come to six weeks, and therefore, the order may be corrected. Vide Court's order dated 26.7.1996, this was clarified. However, this order was passed exparte without any notice to the present petitioner and there was a misrepresentation in the application as is evident from the order dated 26.7.1996 that in pursuance of the order dated 26.4.1996 petitioner has deposited the principal amount of Rs.11,200/- along with interest Rs.7,463/-, and the amount has been so deposited within a period of six weeks pursuant to the first part of the same order. The mistake appears to be a clerical mistake committed through inadvertence. Thus, in the last part of the order "within one month" corrected and replaced by "six weeks". The Court further held that by reasons of such correction, the amount already deposited appears to have been deposited within time stipulated and acceptable to the respective respondent as the deposit was in terms of the said order dated 26.4.1996. In fact this order clearly shows that the respondent no. 3 while moving an application gave an impression that the money had already been deposited within six weeks from the initial order though the Bank Draft No. 06619PRO was made on 2nd July, 1996.

Thus, it is evident that the money had not been deposited within six weeks from 26.4.1996 as the said period expired in the middle of June, 1996. As there was no order of extension of time by this Court nor such an order was sought by respondent no. 3 and an exparte order had been obtained on 26.7.1996 showing that money had already been deposited within six weeks from 26.7.1996, it is a clear cut case of misrepresentation. In terms of the initial order dated 26.4.1996 as the money had not been deposited within six weeks the writ petition automatically stood dismissed and there was no question of accepting the money. The questionnaire filed by the present petitioner as Annexure No. 7 clearly shows that the Bank Draft dated 2nd July, 1996 had been deposited. It appears that the Sub Divisional Officer allowing the respondent no. 3 to deposit the amount after expiry of the period of six weeks has committed illegality and passed an order to deposit the same without any jurisdiction. He had no competence to sit in appeal against the order of this Court or to modify the same and extend the time. Respondent no. 3 did not file the application for correction with clean hands disclosing the facts correctly, and as the order itself has been obtained by misrepresentation, it cannot be permitted to bear the fruits. The order of the Sub Divisional Officer permitting the respondent no. 3 to deposit the amount after expiry of the period stipulated by the Court is without jurisdiction, and therefore a nullity. Therefore, there was no question even to recall that order.

Petition succeeds and is allowed. The amount so deposited shall be refunded to the respondent no. 3 and the order initially passed by this Court on 26.4.1996 remains intact as the petition stood dismissed for not depositing the amount in time.

In the facts and circumstances of the case, the respondent no. 3 shall pay the cost of Rs.2000/- to the petitioner.




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