Durga Prasad vs Smt. Rajrajeshwari Devi Angre and others

Heard. The appellant has filed this appeal against the order dt. 23.3.2011 passed by the learned Single Judge in W.P. No. 403/2009.

The appellant pleaded in this appeal that he had purchased the land in an auction. Thereafter, the right of the ownership was passed in his favour. After a period of near about ten years, the respondents No. 1 to 3 filed a petition questioning the auction and vide impugned order, the learned Single Judge has allowed the petition, which is arbitrary and illegal.

The learned senior counsel appearing on behalf of the appellant has contended that the petition of respondents No. 1 to 3 was not maintainable on the ground of alternative remedy. It is further submitted that there was delay in filing the petition. Hence, the order passed by the learned Single Judge is bad in law.

A case of recovery of land revenue was registered against Sardar Chandori Rao in the court of Tehsildar, Tehsil Gwalior, M.P. It is mentioned in the order sheet that an amount of Rs. 36,121/- in regard to diversion was due against Sardar Chandoji Rao S/o Jiwaji Rao. Thereafter, the auction proceedings were held on 17.3.2001. In the order, it is mentioned that the auction was held in the office of Tehsil Gorkhi, Gwalior at 2.00 p.m. Durga Prasad, Smt. Alka Kakkad, Dinesh Kumar, Kishore Kumar and Vinod Kumar Dubey Patwari Gram Morar were present in auction. Dwarka Prasad Dubey, the present appellant and one Smt. Alka Kakkad offered a bid of Rs. 36,121/- of the land area 0.062 hectare of survey No. 1099 and 1206. The amount was deposited by the auction bidders. Consequently, the land being mutated in favour of the aforesaid persons. Subsequently, a complaint was made to the Collector in regard to forgery in auction of land. The Tehsildar enquired the matter and he submitted a report on 31.1.2009. It is mentioned in the report that for the purpose of recovery of Rs. 36,120.90, which was due against Sardar Chandoji Rao Angre, a demand notice was issued on 29.5.2000. It was received unserved. Thereafter, Kurki warrant was issued and a proclamation on 28.12.2001 in regard to sale of the land was issued, however, in the aforesaid proclamation, the date was not mentioned. Thereafter, the date of auction was fixed on 17.3.2001. On the aforesaid date, no auction was held because no form of auction was prepared neither it is mentioned that who participated in the auction and who offered the bid of how much amount. It is only mentioned that the land was given to Smt. Alka Kakkad and Durga Prasad because they deposited an amount of Rs. 36,121/- and on the same day, the order of mutation was passed but after a period of 30 days, the notice was not issued in regard to confirmation of sale neither any proceeding was conducted. The land is an important land of Morar and it is a valuable land.

u/s 41 Schedule I of the M.P. Land Revenue Code 1959, rules have been framed as Rules of Procedure of Revenue Officers and Revenue Courts (hereinafter shall be referred to as ''the Rules''). Rule 37 and onwards of the Rules are in regard to sale of immovable property. Rule 41 of the Rules is as under :-

At any time within thirty days from the date of sale, any person whose interests are affected by such sale may apply to the Revenue Officer to set aside the sale on the ground of some material irregularity or mistake in publishing or conducting it, and the Revenue Officer may, after giving notice to the persons affected thereby, pass an order setting aside the sale and may order resale; but no sale shall be set aside on such grounds unless the applicant proves to the satisfaction of the Revenue Officer that he has sustained substantial injury by such irregularity or mistake.

Rule 44 of the Rules is in regard to confirmation of the sale. It is clear from the aforesaid mandatory rules that the revenue officer shall pass an order confirming the sale and the Collector has been given power to set aside the sale. In the present case on the same date, the Tehsildar confirmed the sale and also ordered mutation. From the proceedings, it is clear that Smt. Alka Kakkad and the appellant offered a bid of Rs. 36,121/-. It is not clear that how much money was offered by the appellant and Smt. Alka Kakkad W/o Shri A.N. Kakkad. The details of the auction have also not been prepared. The Tehsildar in his report dt. 31.1.2009 clearly observed that no auction had taken place on the aforesaid date. Learned counsel appearing on behalf of respondent No. 7 Smt. Alka Kakkad has pleaded that she had also received some share in the land. However, it is not clear that how much share she received. The respondents No. 1 to 3 before the writ court pleaded that Shri Chandoji Rao Angre died on 1.2.1978 and the proceedings of recovery were started in the year 2000 and thereafter the auction was held. The respondents No. 1 to 3 are the legal representatives of late Chandoji Rao Angre. When Chandoji Rao Angre died on 11.2.1978, after his death no proceedings could be initiated against him.

Division Bench of this court, in the case of Firtu Vs. State, has held that the parties affected by the sale must be heard before passing the order confirming the sale. The findings are as under :-

The word ''may'' in rule 41 of the Schedule u/s 41(2)(e) has been used in connection with the discretion given to the Revenue Officer in setting aside or refusing to set aside the sale. It does not connote that it is at the discretion of the Revenue Officer whether or not to give a notice to the person affected by the sale before making an order of setting aside or confirming the sale. Parties affected by the sale must be heard before passing an order confirming or setting aside sale.

In the present case no notice was issued to the affected parties i.e. respondents No. 1 to 3 neither any proceeding of confirmation of sale was held.

Division Bench of this court in the case of Madani Devi Vs. State reported in 1962 R.N. 70 held that if a defaulter died before sale proclamation, notice to legal representatives is necessary and sale of property without such notice is void.

On the basis of the principle of law and the facts of the case it is clear that the proceedings were initiated against the dead person without impleading his legal representatives as party in regard to sale of the land, which were in violation of the statutory provisions of the rules framed u/s 41 Schedule I of the Land Revenue Code, 1959, hence the same is void ab initio.

After perusal of the record, we have got the impression that a fraud has been committed by the authority with the connivance of the appellant and respondent No. 7. Actually, no auction was held. In such circumstances, the argument advanced by the learned counsel for the appellant regarding availability of alternative remedy and delay & laches deserves to be rejected. The respondents No. 1 to 3/petitioners specifically pleaded that they had no information and knowledge abut the sale. Hence, there was no delay in filing the writ petition. In our opinion, the learned writ court has rightly exercised its jurisdiction. Consequently, we do not find any merit in this appeal. It is hereby dismissed. No order as to costs.