Daryav Singh Verma vs State and Others

MANOJ K. TIWARI, J. (ORAL)

Heard on Delay Condonation Application (CLMA No.12029 of 2012).

There is a delay of 1373 days in filing the restoration application. Cause shown for the delay is sufficient, therefore, the delay is condoned.

Sufficient cause has been shown for non appearance of learned counsel for the petitioner on 10.12.2018, therefore, restoration application being MCC

No. 876 of 2012 is allowed. Writ petition is restored to its original number.

Rejoinder Affidavit is taken on record. Misc. Application (IA No. 2820/15) stands disposed of accordingly.

Heard learned counsel for the parties.

Petitioner is a borrower, who took two loans, one from U.P. Financial Corporation (hereinafter referred to as “UPFCâ€) amounting to

Rs.47,25,000/- and another loan of Rs. 17 Lacs from Pradeshiya Industrial and Investment Corporation of U.P. (hereinafter referred to as

“PICUPâ€), against total sanction of Rs.30 Lacs. UPFC as well as PICUP have been established under Section 3 of the State Financial

Corporations Act, 1951. Both the loans were taken by the petitioner for setting up of Food Processing Unit at Muzafarnagar in the year 1990.

Since, the petitioner did not pay even a single installment towards repayment of the loans taken from the aforesaid two Corporations and PICUP

had transferred its right of recovery of loan to UPFC, therefore, Managing Director, UPFC issued a certificate for recovery of Rs. 2,84,06,396/-

(Rupees Two Crores, Eighty Four Lacs, Six Thousand Three Hundred Ninety Six) on 30.03.2002.

Pursuant to the recovery certificate, Collector Dehradun initiated proceedings for auction sale of petitioner’s residential plot situate at

Dehradun, which was pledged with UPFC as collateral security. The said plot was sold in a public auction held on 01.07.2002, however, the said

auction sale was set aside by the Commissioner, Garhwal Division vide order dated 10.10.2002 on petitioner’s application. The buyer of the

property, Sri Deepak Rawat had also requested for setting aside the auction sale on the ground that the plot of land was situated in Doon Valley

Officer’s Cooperative Group Housing Society and membership to the said society was restricted to Senior Government Officers.

Thereafter, the said residential plot was again put to sale in a public auction held on 18.12.2002 and this time, the highest bid of Rs. 9,42,000/- was

received from Lt. Colonel Mukul Singhal (respondent No.5). The said auction sale was again challenged by the petitioner by filing an application under

Section 285(i) of Zamindari Abolition and Land Reforms Act, 1950. This time, challenge thrown by the petitioner to the auction sale was rejected by

the Commissioner, Garhwal Division vide order dated 28.10.2003, which is challenged in this writ petition.

It transpires that during the interregnum, petitioner approached Allahabad High Court by filing writ petition No.11307 of 2003 seeking the following

reliefs:-

“(i) Issue Writ, order or direction in the nature of prohibition, opp. Parties from proceeding further in pursuance of the undated recovery certificate

sent by U.P.F.C. and received by Collector, Muzaffarnagar on 30.03.2002 and the consequential recovery certificate issued by Collector,

Muzaffarnagar to the Collector, Saharanpur and Collector Dehradun (Annexure 1, 2 and 3) respectively.

(ii) Issue a writ, order or direction in the nature of Certiorari quashing the aforesaid impugned certificate.

(iii) Issue a writ, order or direction in the nature of Mandamus directing the respondents not to give effect to the provisions of U.P.Z.A. and L.R. Act

as well as U.P. Public Money Recovery of Dues Act in so far as petitioner’s property situated at Dehradun is concerned.

(iv) Issue a writ, order or direction in the nature of Mandamus commanding Collector and Tehsildar, Dehradun to lift the attachment of the

petitioner’s property situate at Dehradun.

(v) Issue any other Writ, order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the case.

(vi) Award the cost of the petition to the abovenamed petitioner.â€​

The said writ petition was filed in the month of March, 2003, much after sale of the aforesaid plot of land in public auction to respondent No.5.

However, no disclosure was made in the writ petition about the first auction sale, which was set aside on petitioner’s application and the

subsequent auction sale in favour of respondent No.5 on 18.12.2002.

The said writ petition was finally disposed of vide order dated 25.03.2003, copy whereof is enclosed as Annexure No. CA 12 to the counter

affidavit filed by respondent No.5.

A perusal of the said order reveals that learned counsel appearing for the petitioner had made an offer before Allahabad High Court to deposit

Rs.10 Lacs within one month to show bonafide of the petitioner. The operative portion of the order passed by Allahabad High Court on 25.03.2003 is

extracted below:-

“In view of the above we direct the petitioner to deposit a sum of rupees ten lacs and file a comprehensive representation/objection along with

certified copy of this order as well as complete copy of the Writ Petition with all Annexures before respondent No.2 within one month from today and

on such a representation/objection being filed as stipulated above, the concerned authority shall decide the same after affording opportunity of hearing

to all concerned including the petitioner, on the basis of material on record before it as well as Supreme Court judgment on the issue and pass a

reasoned order exercising its unfettered discretion without being influenced by any of the observations made in this judgment in accordance with law,

within three months of the receipt of the representation/objection as contemplated above. The decision taken shall be communicated to the petitioner

forthwith. Recovery shall be subject to decision taken by the respondent No.2 on the representation/objection of the petitioner.

Till the decision of the representation recovery in question shall be kept in abeyance and the petitioner will not be liable to pay collection charges.

In case of breach of any condition regarding deposition of the money and/or filing of the representation/objection or both this order will become

inoperative automatically without further reference to the Court after expiry of four months.

Writ petition is dismissed subject to above observations.â€​

Learned counsel for respondent Nos.2 to 4/U.P.F.C. submits that despite opportunity given by Allahabad High Court, petitioner did not file any

representation, therefore, he voluntarily gave up the protection given by Allahabad High Court to him till decision on his representation. He further

submits that although an offer was made on behalf of petitioner before Allahabad High Court to deposit a sum of Rupees Ten Lacs within one month,

however, till date, not a single penny has been deposited by the petitioner, which according to him, speaks volumes about the bonafide of the petitioner.

The auction sale made in the second auction held on 18.12.2002 was challenged by the petitioner by filing an application under Rule 285 (i) of U.P.

Zamindari Abolition and Land Reforms Act. Although, it is not known whether this application was filed after decision on his writ petition or not,

however, it was incumbent upon the petitioner to place the order passed by Allahabad High Court before the Commissioner while hearing on

petitioner’s application under Rule 285 (i) of U.P. Zamindari Abolition and Land Reforms Act. For reasons best known to petitioner,

Commissioner was not informed about said order. Contention of petitioner before Commissioner was that proclamation of sale was not served upon

him and it was merely affixed on the disputed property which is situated at Dehradun. Thus, it was the contention of the petitioner that he was not

informed about the auction sale, therefore, Section 163 of the Land Revenue Act has been violated. This, according to the petitioner, would vitiate the

entire proceedings of auction sale. According to petitioner, the auction sale deserves to be set aside on this score alone.

Learned Commissioner rejected the application of the petitioner, which was registered as application No.10/2002-2003 vide order dated

28.10.2003. Regarding the first issue raised by the petitioner that proclamation was not served upon him, learned Commissioner held that since the first

auction sale was set aside at petitioner’s instance vide order dated 10.10.2002, therefore, petitioner had sufficient notice about the proceedings for

auction sale in respect of the plot in question and he could have repayed the loan after cancellation of first auction sale. Regarding the second issue

that the property was not valued, learned Commissioner held that petitioner has not paid a single penny towards repayment of the loan taken by him

and his aim is to delay the proceedings for obvious reasons.

Feeling aggrieved by the order dated 28.10.2003, petitioner filed Revision No. 1/2003-04, which too was dismissed by learned Additional Chief

Revenue Commissioner vide judgment and order dated 29.07.2005, which is also challenged in this writ petition.

Learned Addl. Chief Revenue Commissioner has considered and discussed the issues raised by the petitioner in great detail and has held that

petitioner has failed to point out any material irregularity, which may vitiate the proceedings of auction sale.

I have gone through the orders impugned in the present petition. I am in agreement with the view taken by learned Commissioner, Garhwal

Division in his order dated 10.10.2003, which is confirmed by the Addl. Chief Revenue Commissioner in his judgment and order dated 29.07.2005.

Thus, there is no scope for interference with the orders impugned in this writ petition.

As is apparent from the material on record, petitioner borrowed substantial amount of public money from U.P.F.C. and PICUP and as submitted

by learned counsel for the U.P.F.C., petitioner never paid a single penny towards repayment of the loan, so taken by him. Petitioner did not honour the

offer made by him before Allahabad High Court and even did not file any representation in terms of the order passed by Allahabad High Court in Civil

Misc. Writ Petition No. 11307 of 2003. Moreover, the order passed by Allahabad High Court was not brought on record before the Commissioner,

Garhwal Division. The said conduct of the petitioner speaks volumes about his intentions and bonafide.

Mr. Ramji Srivastava, learned counsel appearing for respondent No.5 submits that auction sale in favour of respondent No.5 was confirmed and

sale certificate was issued in favour of respondent No.5, long back and possession of the plot was also delivered to him, who constructed residential

house by taking housing loan of more than Rs. 30 Lacs, from State Bank of India. For obtaining the said loan, plot in question was mortgaged in favour

of the concerned Bank.

Mr. R.C. Arya, Standing Counsel for the State submits that the auction proceedings were held, in accordance with law and there is no infirmity or

irregularity whatsoever, which may warrant interference by this Court under Article 227 of the Constitution.

As stated earlier, this Court concurs with the reasoning given by Additional Chief Revenue Commissioner and Commissioner, Garhwal Region in

their orders, therefore, there is no scope for interference with these orders.

In such view of the matter, the writ petition is liable to be dismissed and is hereby dismissed. No order as to costs.

Interim order, if any, stands vacated.