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R.S.Pasi v. Collector - WRIT - C No. 20754 of 1991 [2006] RD-AH 10977 (5 July 2006)


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Court No. 10

Civil Misc. Writ Petition No. 20754 of 1991

Ram Sakal Pasi Vs. The Collector, Mau Nath Bhanjan and others

Hon'ble A.K. Yog, J.

Hon'ble V.C. Misra, J.

Ram Sakal Pasi (petitioner before us) has approached this Court by filing writ petition under Article 226, Constitution of India, praying following reliefs:

" It is, therefore, Most  Respectfully prayed that this Hon'ble Court may be pleased to :-

i.issue a writ, order or direction in the nature of Certiorari quashing the order passed by the respondents dated 6th July, 1991 for fixing the auction date as 17th August, 1991 (Annexure-1 to the writ petition};

ii.issue a writ, order or direction in the nature of Mandamus directing the respondents to issue sale certificate in favour of the petitioner in pursuance of the auction sale dated 3rd July, 1991"

In brief, the petitioner has come to this Court pleading  that the properties belonging to M/S R.K. Bulb Industries Limited, Mau Nath Bhanjan/Respondent No. 3 were sought to be auctioned in lieu of recovery of loan amount which the Respondent No. 3 had taken and unable to pay; a part of recovery proceedings, properties of Respondent No. 3 were attached and auction proceedings  initiated; initially  28-1-1991 was fixed for auction; petitioner, being the highest bidder, offered Rs. 2,00,100/- and  deposited Rs. 50,025/- on 28-1-1991; he was required to pay balance amount in two weeks; petitioner, however failed to pay and March 30, 1991 was fixed for auction but no bidder came forward; again 3-7-1991 was fixed (learned counsel for the petitioner concedes that said date has been wrongly mentioned inadvertently and the same should be read as 3-6-1991);  the petitioner was again the highest bidder having offered Rs. 2,00,200/-; petitioner deposited Rs. 50,050/- at the fall of hammer; according to the petitioner  he also deposited balance amount on 17-7-1991; the respondent Authority did not confirm auction-sale and proceeded to consider the matter for one time settlement; it appears again auction-sale of the land belonging to Respondent No. 3 was proposed for 17-8-1991 vide order dated 16-7-1991 passed by Sub Divisional Magistrate (Sadar) Maunath Bhanjan/Respondent No.2. (Annexure-1 to the petition) and the petitioner being aggrieved has approached this Court.

Respondent Nos. 1 and 2 filed no counter affidavit whereas M/S R.K. Bulb Industries Ltd. has filed counter affidavit. U.P. Financial Corporation, Gorakhpur ( for short ''UPFC'), added as Respondent No. 4 under order of Court dated 13-12-1993 has also filed counter affidavit. Petitioner has filed rejoinder affidavit against aforesaid counters.

In para-6 of the rejoinder affidavit (filed in reply to the counter affidavit of Respondent No. 4) there is a reference of letter dated 26-8-1991/Annexure-RA-2. Perusal of the said document shows that it is a report  submitted by ''Rajaswa Lekhakar' narrating the  facts and referring the matter to the higher Authority for requisite orders in view of the fact that debtor had deposited certain amount in lieu of recovery in the past. This document/Annexure-RA 2 contains reference of an order dated 27-6-1991 passed by Sub Divisional Magistrate cancelling the auction which had taken place on 3-6-1991 (referred above in the judgment). The rejoinder affidavit in question (referring to letter/report dated 26-8-1991) was sworn on 4-7-2004. It is, therefore, clear that petitioner came in possession of the said letter/report dated 26-8-1991 on or before 4-7-2004. The petitioner has taken no trouble to challenge the said order of Sub Divisional Magistrate (cancelling auction of 3-6-1991) nor any relief has been sought against the said order in the present writ petition.  

In that view of the matter, it is clear that facts  required to adjudicate the issue ''whether petitioner had matured his right as auction-purchaser in lieu of having deposited entire amount (as alleged by him in the writ petition)' have not been pleaded and hence this question cannot be adjudicated in present writ proceedings.

We cannot ignore the fact that auction had taken place on 3-6-1991(as conceded by learned counsel for the petitioner) and balance amount was deposited on 17-7-1991, i.e. beyond 14 days (writ para-7 of the writ petition).

Taking into account entirety of the facts of the case, particularly that the petitioner had obtained ad interim order which restrained respondents from auctioning the properties belonging to Respondent No. 3 from the year 1991 till date, we direct the petitioner to approach the concerned Sub Divisional Magistrate and file his objection before him, if any, within one month along with certified copy of this order. It is further provided that the concerned Sub Divisional Magistrate shall pass appropriate orders on the objection, if any, filed by the petitioner within two months from the date of  receipt of objection along with certified copy of this order and the same shall be decided after affording opportunity of hearing to Respondent Nos. 3 and 4 ( M/S R.K. Bulb Industries Ltd. and U.P.F.C.) also. If petitioner fails to file objection (as contemplated above), the Respondents shall be free to proceed in the matter in accordance with law.

Writ petition stands finally disposed of subject to the above directions.

There shall be no order as to costs.




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