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Judgment
K. C Bhargava. J.
The petitioners have approached this Court praying for issue of a writ of certiorari quashing the orders dated 3171990, 3151991 and 1161992, contained in annexures 2,3 and 4 to the writ petition and to direct the opposite parties not to dispossess the petitioners from the land in question and not to interfere in the possession of the petitioners.
The facts giving rise to the present petition are that the petitioners father, late Sri Labboo Ram, had taken an agricultural loan of Rs. 53,000/ from the Punjab National Bank, opposite party no. 1, for purchase of a tractor. The above loan was advanced to late Sri Labboo Ram on 1651980. Labboo Ram, the petitioner''s father, had also repaid a sum of Rs. 48,000/ to the opposite party no.1 towards the above loan of Rs. 53,000/. Late Sri Labboo Ram had also mortgaged his agricultural land bearing Khata Nos. 167B, 182B and 166B situate in village Jogipura, Bajpur, district Nainital, in favour of the Punjab National Bank, opposite party no. 1. The petitioners'' father Labboo Ram died on 1531985 leaving behind him the petitioners as his legal heirs. After the death of the petitioners'' father, Labboo Ram, the petitioners were mutated in the revenue record on a major portion of the land which was mortgaged by late Sri Labboo Ram in favour of the Punjab National Bank, opposite party no. 1. The petitioners deposited a sum of Rs. 34,692/towards the agrialtural loan of Rs. 53,000/ There after a sum of Rs. 7,750/ was also deposited by the State Government under the Agriculture and Rural Relief Scheme, 1990. Thus a total sum of Rs. 90,442/ was deposited with the Bank, opposite party no. 1, against the loan of Rs. 53,000/ the details of which are mentioned in para 8 of the writ petition. Compound interest was charged against the directions of the Reserve Bank of India. After the death of the petitioners'' father the petitioners continuously approached the opposite party no. 1 to furnish them the final and correct account so that the balance amount of the loan could be paid in full. It is further alleger that without issuing any notice of demand, citation or recovery certificate against the petitioners the loan mortgaged with the opposite party no. 1 has been illegally auctioned in favour of the opposite party no. 5, Jagir Chand, in collusion with the opposite parties 1, 4 and 6 to 10 on 6th September, 1990. The market value of the land in question is about five lace while the same has been auctioned only for Rs. 90.0CO/The fact regarding the death of Labboo Ram, the petitioners'' father, was well known to opposite party no. 1 which kept the petitioners in dark due to malafide intention and issued a demand notice dated 30101990 against the petitioners'' father, who was dead at that time, for depositng a sum of Rs. 66,964.50, paisa upto 15111990. A copy of the demand notice is annexure1 to the write petition. After receipt of this demand notice the petitioners immediately contacted the opposite party no. 1 to deposit the balance amount of the loan but they were suprised and chocked to know that the land in question had already been auctioned for Rs, 90.000/ in favour of Jagir Chand, opposite party no 5, on 691990 and the said auction had also been confirmed by the SubDivisional Officer on. l6101990 The petitioners were never served with any citation notice, demand notice or recovery certificate and the land inquestion has been fraudulently auctioned in collusion with opposite parties 1 and 5 in anillegal manner. The alleged sale declaration dated 3171990 issued under Rule ex 292 of the U. P. Zamindari Abolition and Land Reforms Act and the Rules framed there under was issued in Form No. 73D and 74 against & dead person and therefore the same is void and has no legal effect Certificate copy of Form 74 dated 3171990 is annexure2 to the writ petition. No recovery certificate was issued prior to 30101990 and the auction sale proceedings were conducted in gross violation of law which resulted in miscarriage of justice to the petitioners. It is further alleged that before issuing the auction said declaration dated 3171990, anexure2, no notice, demand or citation was personally served upon the petitioners who are the legal heirs of deceased Labboo Ram. The provisions of Section 11 of the Agricultural credit Act have not been complied with nor the findings under Section 154 of the U. P. Zamindari Abolition and Land Reforms Act have been recorded by the Sub .Divisional Officer before accepting the alleged auction sale by his order dated 16101990. A revision was preferred by the petitioners under Section 333 of the U. P. Zamindari Abolition and Land Reforms Act before the Additional Commissioner (J), Kumaun Division, Nainital'' opposite party no. 2, which was registered as Revision No. 48/1990/1991 but the same was rejected on 3lst May, 1991 vide order contained in annexure3 to the writ petition. Against thereorder dated 31st May, 1991, annexure3 passed by the Additional Commissioner (J), Kumaun Division, Nainital, a revision was preferred by the petitioners before the Board of Revenue, U. P., Lucknow, opposite party no. 3 but the same was also dismissed on 11.6.1992 without considering the arguments of the petitioners and therefore the order dated 11.6.1992 passed by the Board of Revenue, U.P., Lucknow, oppositeparty no. 3, vide annexure4 to the writ petition is illegal, void and in gross violation of natural justice. The petitioners are still in possession of the land in dispute.
A counter affidavit has been filed by opposite party no. 5, Sri Jagir Chand, who is the auction purchaser. It is alleged that the father of the petitioners had died leaving behind the petitioners as legal heirs but the date of death of the petitioners'' father has not been disclosed. The petitioners'' names were mutated in place of the deceased father on the basis of the will executed by Labboo Ram. The petitioners were duly served with the notice of demand and citation. Against the citation the petitioners have preferred Revision No. 51 of 198990 before the Commissioner, Kumaun Division, Nainital which has been dismissed by the Commissioner, Kumaun Division on 18.6.1990, a copy of which is annexure CA2 to the counter affidavit. It is wrong to say that the market value of the land in question was five lac ruppees and the same was auctioned in favour of opposite party no. 5 for Rs. 90,000/ only with collusion of opposite parties 1 to 4. Only an area of 9 acres of land was auctioned for 90.000/ rupees which comes to 10.000/ per acre. The notice of demand dated 30.10.1990 was issued by the opposite party no. 1 and was served upon the petitioners, a copy of which is annexure1 to the writ petition. The auction sale had taken place on 6.9.1990 and the dues had already been realised pursuant to the recovery certificate. It appears that prior intimation was not given by the recovering authorities to the Bank with the result the notice of demand, annexure1, had been issued by the Bank and the petitioners cannot claim any benefit against the same. It is further alleged that the revision was listed for hearing on 11.6.1992 on which date the learned counsel for the petitioners did not appear although the case was called twice and as such there was no option left with the Court but to decide the revision. During the course of the arguments of the learned counsel for the opposite parties the learned counsel for the petitioners appeared and made a request that he may be allowed to submit written arguments. His request was allowed and written arguments were submitted. After confirmation of sale the sale certificate was issued and mutation had also been made on 7.12.1990. Against the mutation order the petitioners preferred an appeal before the Collector, Nainital which was dismissed on 5.9.1991. After decision of case in proceedings under Section 34 of the Land Revenue Act the opposite party no. 5 made an application for delivery of possession on 8.12.1990. Which was allowed and accordingly the possession was delivered to the opposite party no. 5 on 14.12.1990. Even after the delivery of possession to opposite party no 5 the petitioners started threatening the opposite party no 5 and therefore the opposite party no. 5 had to file Regular Suit No. 149 of 1991 for injunction restraining the petitioners from interfering with the possession of opposite party no. 5 wherein an interim injunction order was passed against the defendantspetitioners. That injunction order is still operative, a copy of which is annexureCA6. Against the order passed by the Divisional Magistrate, Kashipur, confirming the auction sale the petitioners filed a revision before the Additional Commissioner (J), Kumaun Division, Nainital, opposite party no. 2 which was dismissed on 31.5.1591. Against the dismissal order dated 31.5.1991 petitioners preferred Writ Petition No. 17432 of 1991 (Avinash Chandra and others Versus Additional Commissioner and others) before this Court at Allahabad. The petitioners have got a statutory remedy of filing the objections under Rule 285(1) of the U. P. Zamindari Abolition and Land Reforms Rules within 30 days from the date of sale which they have not availed of. If no objection is filed under Rule 285(I) within 30 days the claim is barred as provided in Rule 285 (K). The only course open to the petitioners is to file a suit in civil court and now the petitioners cannot question the validity of the auction sale.
A rejoinder affidavit has been filed by the petitioners reiterating the allegations mentioned in the writ petition. It is alleged that the petitioners were never served with any notice or citation. It is further alleged that the petitioners are still in possession of the land in dispute.
Learned counsel for the petitioners, learned counsel for the State and the learned counsel for the opposite party no. 5 have been heard. It is not disputed that the loan of Rs. 53.000/ was taken by the petitioners father Late Sri Labboo Ram on 16.5.1980 from the Punjab National Bank, opposite party no. 1. The said loan was not paid and the property of Labboo Ram was auctioned on 6.9.1990 for a sum of Rs.90,000/ in favour of opposite party no. 5. On 16.10.1990 the sale was confirmed and the sale certificate was issued. The application for mutation of the name of opposite party no. 5 was allowed and the mutation was also made on 7.12.1990 Now the dispute is as to whether the possession had been delivered or not''? According to the learned counsel for the opposite party no. 5 the possession had been delivered while according to the learned counsel for the petitioners the possession was not delivered. The first contention of the learned counsel for the petitioners is that after the death of Labboo Ram no notice for recovery of the amount of citation was issued and served upon the petitioners and the entire proceedings which have been taken against Labboo Ram are invalid. The fact whether the demand notice and citation were served upon the petitioners or not is to be seen. According to the petitioners the citation was not served on them This contention is wrong. Annexure CA2 is the copy of order passed in Revision No. 51 of 198990 (Jai Chand and others Versus U. P. State and others) decided on 18.6.1990 by the Commissioner, Kumaun Division, Nainital. In this case Avinash has been snown as respondent no. 5, petitioner Hira Lal petitioner no. 2 as respondent no. 4, Nirmal Chand petitioner no. 3 as respondent no. 3. Thus we find that all the petitioners were respondents 3 to 5 in the above revision. The opening part of the order dated 18.6.1990 passed by the Commissioner, Kumaun Division, in the above revision, is that "This is a revision against the order of the Peshkar, Bazpur, issuing a citation dated 14.6.1989 for recovery of certain dues." This fact will go to show that citation was served on the petitioners and the respondents also knew about this citation which was issued on 14.6.1989. The above revision has been decided on 18.6.1990. When the citation had been issued and served upon the legal representatives of Labboo Ram it became the duty of the petitioners to have filed objections against the auction sale which held on 6.9.1990 if there was any irregularity or illegality in conducting the same. The provision for filing objection is to be found in Rule 285(I) of the U. P. Zamindari Abolition and Land Reforms Rules framed under the U. P. Zamindari Abolition and Land Reforms Act, 1950. This rule is as under :
"2851. (i) At any time within thirty days from the date of sale, application may be made to the Commissioner to set aside 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 the reason of such irregularity or mistake.
(ii) ��������.
(iii) The order of the Commissioner passed under this rule shall be final."
A perusal of this rule goes to show that objection has to be filed within 30 days from the date of sale. The sale can be set aside by the Commissioner if there is some material irregularity or mistake in publishing or conducting it. Further the applicant/objector has to prove to the satisfaction of the Commissioner that he has sustained substantial injury by reason of such irregularity or mistake. Rule 285(J) provides that on the expiration of thirty days from the date of the sale if no such application, as is mentioned in Rule 2851, 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 of the U. P. Zamindari Abolition and Land Reforms Act. Rule 285H provides for setting aside the sale on deposit of certain amount in the Collector''s Office within 30 days from the date of sale. It means that a person whose property has been sold may apply for setting aside the sale within a period of 30 days from the date of sale after depositing the amounts mentioned in Rule 285H. In the present case the petitioners whose property has been sold did not avail the remedy provided under Rule 285H and 2851 within 30 days from the date of sale. In the present case it cannot be said that the petitioners had no knowledge or intimation about the sale of their property. When citation had been served on the legal representatives of deceased Labboo Ram, who had also filed a revision and the petitioners were also a party in that revision, then it cannot be said that the petitioners had no knowledge about the auction sale. The petitioners did not avail the remedy available to them under Rule 285H and 2851 for setting aside the sale. As they have not availed the above remedy they cannot straight away come in writ petition before this Court and complain that such and such irregularities or mistakes has been committed in publishing or conducting the sale. Annexure 3 to the writ petition is the copy of Judgment dated 31.5.1991 passed by the Additional Commissioner (J), Kumaun Division, Nainital in Revision No. 48 of 199091 (Avinash Chandra and others Versus Jagir Chandra and others) under Section 333 of the U. P. Zamindari Abolition and Land Reforms Act. This revision was filed against the auction sale dated 6.9.1990 and the order of confirmation dated 16.10.1990. In that revision it was alleged that the auction sale had been wrongly done against the provisions of law. No notice of auction sale was given to the revisionists and the sale proceedings were fictitiously held. It was further alleged that the property in dispute was also not attached. It was also alleged that after the death of Labboo Ram the property had not been partitioned. After hearing both the parties the Additional Commissioner held that the auction proceedings were legally held. He has further held that on the recovery certificate there are signatures of the revisionists. It appears that the learned Commissioner has wrongly mentioned ''recovery certificate'' in place of citation. As seen in the earlier part of the Judgment actually the citation was served on the heirs of Labboo Ram against which a revision was filed by certain heirs of Labboo Ram. In the Judgment it has been observed by the learned Additional Commissioner that the amount of loan was not paid and the proceedings of the recovery of the amount were according to law. It is further mentioned that after the auction no objections was filed by the heirs of Labboo Ram who had two wives. It is further mentioned in the Judgment that against the auction a revision was filed which was dismissed. After considering all these facts the learned Additional Commissioner dismissed the revision. Thus it is also clear from the Judgment of the Additional Commissioner that no objections were made against the auction sale and the confirmation of sale. It is also clear that citation was also served on the heirs of deceased Labboo Ram.
Learned counsel for the petitioner has placed reliance on the case of Isha Beeri v. T. R. O. and others (1915 Income Tax Reports 449, Vol. 101). This case does not apply to the facts of the present case. It merely says that the recovery proceedings commenced by the issue of preliminary notices under rule 48 of Schedule II to the income Tax Act, 1961, can be quashed at that stage only if they are entirely without Jurisdiction. This is not the case here. .
The other case relied upon by the petitioner is Jalaluddin v. State of U P. and others (1985 RD 124) wherein a Division Bench of this Court held that the arrest and detention or attachment and sale could take place only if the defaulter does not pay after a notice of demand has been issued and served: Jurisdiction to proceed under Section 281 and 282 of the U. P. Z. A. and L. R. Act is dependent on compliance of Section 279 of the Act. In absence of service of notice of demand the Collector or Tehsildar could not proceed to attach and sell the property. Such procedure is violative of even the principles of natural justice. This case does not apply to the facts of the present case. In the present case it has been found that citation was served upon the heirs of Labboo Ram and they had knowledge of the citation notice even before the date of auction.
The next case is Leelachand Walchand Gujar and others v. Vishnu Ganesh Lakade and others (AIR 1945 Bombay 409). In this case in execution proceedings of mortgage degree the legal representatives of one of comortgagors were not brought on record and therefore it was held that the mortgage decree was not binding on those legal; representatives who were not brought on record. This case also does not apply to the facts of the present case.
Much reliance has also been placed by the petitioners on the auction notice dated 31st July, 1990 issued by the SubDivisional Officer in which the name of Sri Labh Chand alias Labboo Ram is mentioned. It may be pointed out that this notice appears to be wrongly issued because the sale had already taken place. After the sale there was no jurisdiction to issue subsequent notice. It appears to be a mistake on the part of the authorities because by that time the auction had already taken place. Therefore the petitioners shall not have any benefit because of this notice.
Next it has been argued by the learned counsel for the petitioners that the recovery certificate was issued against a dead person. In the present case it has not been shown that the recovery certificate or citation was issued against a dead person. In the revision filed against the citation no such plea was taken that the citation was issued against a dead person. Therefore the petitioners cannot claim any advantage on the basis of this argument.
Thus from what has been said above it is clear that the petitioners did not file any objection before the Collector or the Commissioner as provided under Rules 285H and 2851 of the U. P. Zamindari Abolition and Land Reforms Rules. Therefore this writ petition could not have been filed by the petitioners without availing the alternative remedy which was available to them under the above rules.
This writ petition has no force and is dismissed. The petitioners shall pay a sum of Rs. 1000/ as cost to the opposite parties.
(Petition dismissed)