Devendra Singh Rana vs Commissioner, Garhwal Division, Sub Divisional Magistrate, Sadar/Additional District Magistrate (Finance and Revenue), Tehsildar/Auction Officer and Jagmali Films Pvt. Ltd.

B.S. Verma, J.—Heard learned Counsel for the parties and perused the record.

By means of this writ petition, the petitioner has sought the following reliefs:

i. An order or direction to set aside the judgment/order dated 28-3-2001 passed by Sub Divisional Magistrate and the order dated 30-4-2002 passed by Tehsildar/Auction Officer informing cancellation of sale (Annexure No. 2) and the impugned order dated 29-6-2002 passed by the Commissioner i.e. respondent No. 1 (Annexure No. 6) whereby petitioner�s objections were cancelled.

ii. An order or direction to direct the respondents to confirm the auction sale dated 11-1-2001 and to handover possession of the property in question to the petitioner.

iii. Any other relief which this Hon�ble Court may deem fit and proper in the circumstances of the case.

iv. To award the cost to the petitioner.

Briefly stated, the facts giving rise to the present writ petition are that the petitioner is an auction purchaser and the public auction of the property in question was made by the respondent authority on 11-1-2001. There were four bidders in all. The petitioner�s bid was the highest one, i.e. Rs. 6,60,000/-. The total auction amount of Rs. 6,60,000/- was deposited by the petitioner.

It appears that objections were filed against the auction sale by the owner of the property in question and other persons before the Sub Divisional Officer after the expiry of statutory period of thirty days from the date of auction sale. Ultimately, the auction was cancelled on 28-3-2001 and intimation was given to the petitioner vide letter dated 30-4-2001 (Annexure-2 to the petition) issued by Tehsildar.

Aggrieved by the order of cancellation of the auction, the petitioner preferred an objection u/s 173 of the Uttar Pradesh Land Revenue Act 1901 (for short the Act) before the Commissioner, which was registered as Misc. Appeal No. 9/2000-2001, Devendra Singh Rana v. State. Objection was filed inter alia on the ground that the Sub Divisional Officer has no jurisdiction to cancel the auction sale. Moreover, the defaulter/owner of the property has also no right to move before either Tehsildar or the Sub Divisional Officer after expiry of period of 30 days, as has been provided under Rule 285-H of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 and that the action of the Sub Divisional Officer in entertaining the objection of the defaulter/owner of the property in question and other persons is against the provisions of Section 171, 173 and 174 of the Act. Ultimately, the objection of the petitioner was rejected by the Commissioner vide order dated 26-6-2002 as not legally maintainable. Therefore, this writ petition has been filed.

Counter affidavit has been filed by the State. The main contention raised in the counter affidavit is that the auction sale was cancelled prior to confirmation of sale, but this fact has been admitted that an application was moved by the borrower/owner of the property after expiry of statutory period 30 days for filing objection for setting aside the auction sale. It has been stated in the counter affidavit filed on behalf of the respondent No. 2 that subsequently the matter was settled mutually by the Urban Cooperative Bank and the 4th respondent M/s Jagmali Films Pvt. Ltd. The respondent No. 2 has also annexed the letter dated 13-2-2004 sent by the Urban Co-operative Bank to the Tehsildar Dehradun as Annexure-CA-3 to counter affidavit to show that the entire defaulted amount was deposited by the defaulter and the Bank concerned also made a request to withdraw the recovery certificate, which was sent back to the bank unexecuted since the total defaulted amount of Rs. 12.50 lacs had been deposited by the respondent No. 4 in the Bank.

I have heard learned Counsel for the parties and perused the material on record.

The admitted facts are that the respondent No. 4 had borrowed a loan, which ultimately gave rise to the recovery certificate issued by the Urban Cooperative Bank Limited and the immovable property of the respondent No. 4 was put to public auction. The property in question was auctioned on 11-1-2001. This fact is also not disputed that the petitioner offered highest bid and he deposit the requisite amount of Rs. 6,60,000/-.

The grievance of the petitioner is that the respondent No. 4 ought to have filed objection within statutory period of 30 days from the date of auction sale. The action of the authority in entertaining the objection after the expiry of the said period is illegal. Learned Counsel for the petitioner also contended that compliance of Rule 285-H of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 has not been made by the defaulter-respondent No. 4 which provides that a sum equal to 5 per cent of the purchase-money shall also be deposited in the Collector�s office for payment to the purchaser and that too within a period of thirty days from the date of sale. The application made by the defaulter/owner of the property was time barred as well as defective. Even though the application of the respondent No. 4 was entertained and the auction sale was cancelled on 28-3-2001.

Learned Additional C.S.C. appearing on behalf of the respondents has contended that respondent No. 3-Tehsildar Dehradun while informing the petitioner regarding cancellation of auction sale has asked the petitioner by his letter dated 30-4-2001 to get the auction money deposited by him from the Tehsil.

During the course of arguments, learned Counsel for the petitioner has made a prayer that if the Court is not inclined to set aside the order dated 28-3-2001passed by the Sub Divisional Officer, the order of Tehsildar dated 30-4-2002 as well as the order dated 29-6-2002, which are impugned in the present writ petition, then the petitioner is entitled as per provision of Section 176 of the Act for refund of purchase money which was deposited by the petitioner before the Tehsildar, along with interest at the rate of 6% per annum.

In the above facts and circumstances of the case, coupled with the fact that since the objection of the defaulter/owner of the property was entertained by the respondent-authorities after the expiry of the statutory period of thirty days from the date of auction sale and the auction sale was ultimately cancelled, therefore, in view of the provisions of Section 176 of the Act, the respondent Nos. 1, 2 and 3 are directed to refund the amount of Rs. 6,60,000/-, which was deposited by the petitioner as sale consideration of the property of respondent No. 4, along with interest at the rate of 6% per annum thereon from the date of deposit till the actual payment is made to the petitioner, within a period of three months from the date of production of certified copy of this order.

With the above direction, the writ petition is disposed of finally.

All pending applications stand disposed of.