Mohseen Ahmed vs State and Others

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

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

A) a writ, order in the nature of certiorari quashing the impugned auction order dated 09.04.2009 (Annexure No. 3) passed by the Respondent No. 2.

B) Issue a writ, order or direction in the nature of mandamus commanding and directing the Respondents 1,2 and 3 to not to hand over the Petitioner''s aforesaid land to the Respondent No. 7 and also to direct to recover the loan amount from the Respondents No. 4,5 and 6.

C) Such other relief or reliefs as this Hon''ble Court deems just and proper in the facts and circumstances of the case, may also be granted.

Brief facts of the case, giving rise to this petition is that the Petitioner purchased some land from Respondents No. 4 to 6 through a registered sale deed dated 19.04.2007. Later in the year 2009, it came to the knowledge of the Petitioner that Respondents No. 4 to 6 have taken loan from Central Bank of India (Respondent No. 3) over the aforesaid land and Respondent bank after publishing the auction notice, auctioned the aforesaid land to the highest bidder/Respondent No. 7, vide order dated 09.04.2009, which is annexed as annexure-3 to the writ petition. Hence this writ petition.

In the counter affidavit, filed on behalf of Respondent No. 7, it has been stated that the Petitioner had taken a loan of Rs. 2,85,000/- from the Bank of Baroda, while mortgaging their land through a registered mortgage deed executed on 09.06.2003 (Annexure C.A. 1 to the counter affidavit). It is further contended on behalf of the Respondent that the writ petition is not maintainable because sale certificate was issued in favour of Respondent No. 7 prior to filing of this petition.

I have perused the material placed on record. This fact is not disputed that the Respondents did take loan from Bank of Baroda as well as from the Central Bank. This fact is also not disputed that the loan was recoverable from the land in question, therefore the citation was issued against Respondents No. 4 to 6.

Learned Counsel appearing for the Petitioner vehemently urged that the Petitioner has filed objections before the Recovery Officer to this effect but despite of deciding the objections, filed by the Petitioner, the Recovery Officer proceeded for auction.

I have perused the Rule 285-I of the U.P. Z.A & L.R. Rules, which provides alternate remedy to file appeal within a period of 30 days from the date of sale of the land. But due to wrong advice the Petitioner approached this Court.

Having heard learned Counsel for the parties, the Petitioner is given liberty to avail appropriate remedy i.e. to file appeal before the Commissioner. Respondents may raise all objections available to them before the Commissioner at the time of filing of appeal by the Petitioner. Therefore, the writ petition is dismissed on the ground of alternate remedy.