Wasi Ansari vs State of U.P. and Others

Smdhir Narain, J.—The Petitioner seeks writ of certiorari quashing the order dated 2.11.1995 passed by the Additional District Magistrate (Finance & Revenue), Ghazipur, Respondent No. 3 whereby he cancelled the auction of the disputed property held on 7th September, 1977.

The facts of the case in brief are that Respondent No. 4 Shamshul Haq had taken loan of Rs. 12,000 from the Industry Department. He mortgaged his house in lieu of the loan. He could not repay the loan amount. Consequently, the Industry Department issued recovery certificate for sum of Rs. 14,300 on 4.11.1976. The property of Respondent No. 4 and guarantor was sold in auction on 7.9.1977. This auction is alleged to have been confirmed by the Collector, Ghazipur on 18.1.1978 but later on the amended confirmation order was passed on 15.10.1980 a copy of which is annexed as Annexure 2 to this writ petition. After the confirmation of the sale, the Petitioner was issued a sale certificate by the Sub-Divisional Magistrate concerned on 19.2.1984. This auction was not challenged either by Respondent No. 4 or his guarantor whose properties were sold. On 24.2.1995 Respondent No. 5 who is son of Respondent No. 4, filed an application before Respondent No. 3 for cancellation of the auction held on 7.9.1977. On his application, Respondent No. 3 directed the Sub-Divisional Magistrate concerned to submit report in the matter who in his turn directed the subordinate authorities to submit report and consequently, on 26.6.1995 the Naib-Tahsildar concerned submitted a report to the Tahsildar concerned stating that he made enquiry and found that house of Respondent No. 4 and his guarantor had been sold in auction on 7.9.1977. The Petitioner had purchased these houses. The photostat copy of the order of the Collector, Ghazipur dated 15.10.1980 and sale certificate dated 19th February, 1984 were produced before him. He tallied the same from the original documents. The Sub-Divisional Magistrate concerned submitted a report to the Additional District Magistrate, Respondent No. 3 on 26.10.1995. In the report, he stated that from the documents it appears that auction had taken place but the sale deed was not registered in the Sub-Registrar''s office. The property was alleged to have been sold for Rs. 5,000 which was not shown as deposited in the Treasury Office. The original record relating to auction appears to be missing. The sale was alleged to have been confirmed on 18.1.1978 but photostat copy of the sale confirmation order shows that the Collector confirmed it on 15.10.1980. Respondent No. 3 accepted the report of the Sub-Divisional Magistrate and held that the auction dated 7.9.1977 was invalid and cancelled the entire auction proceedings. He further directed that if Respondent No. 4 had not paid the amount, the recovery certificate be summoned from the Industry Department and Respondent No. 4 be directed to pay the amount to the Petitioner. This order has been challenged in the instant writ petition.

We have heard Shri N. I. Jafri learned Counsel for toe Petitioner and Shri Ashok Kumar learned Counsel for Respondents 4 and 5 and Shri H. P. Yadav learned standing counsel for Respondents 1 to 3.

It is admitted that Respondent No. 4 had taken loan from the Industry Department and he had mortgaged the house in question. The amount was being realised as arrears of land revenue. The version of the Petitioner is that on 7th September, 1977 the auction in regard to the house of Respondent No. 4 as well as his guarantor had taken place. The said auction was confirmed on 18fh January, 1978 and later on amended confirmation order was issued by the Collector, Ghazipur on 15.10.1980.

The procedure for challenging the auction proceedings, is given under Rule 285H and Rule 285-I of U.P. Zamindari Abolition and Land Reforms Rules, 1952 (in short as ''Rules'') Rules 285-H, provides that a person whose holding or other immovable property has been sold under the provisions of the Act, may at any time within thirty days from the date of sale, apply to have the sale set aside on his depositing in the Collector''s office (a) for payment to the purchaser, a sum equal to 5 per cent of the purchase money ; and (b) for payment on account of arrears, the amount specified in the proclamation. Rule 285-I of the Rules provides that at any time within thirty days from the date of the sale, application may be made to the Commissioner to set aside the 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 reason of such irregularity or mistake.

Admittedly, neither Respondent No. 4 nor his guarantor whose properties were sold in auction, challenged the auction proceedings by making an application before the Commissioner under Rule 285-I of the Rules. The sale was to be confirmed after expiry of 30 days from the date of the sale. Under Rule 285J of the Rules, it is provided that if no such application as is mentioned in Rule 285H or Rule 285-I is made, the Collector is bound to confirm the sale.

In this case, a document was produced by the Petitioner to show that sale was confirmed. A true copy of the order of the Collector dated 15.10.1980 was filed. There is a dispute as to whether the sale was confirmed on 18.1.1978 but the document indicates that it was confirmed on 15.10.1980. The Petitioner had also produced the sale certificate before the Sub-Divisional Magistrate concerned and he found that the said document proves that the sale had taken place.

Learned Counsel for the contesting Respondents has contended that the entire sale proceedings were vitiated and in fact no sale at all had taken place. The documents filed by the Petitioner were verified by the Sub-Divisional Magistrate. He found that documents indicate that the sale had taken place. The reason given by him was that the sale deed was not registered in the office of the Sub-Registrar. The amount which was alleged to have been paid by the Petitioner in the auction proceedings was not shown to have been deposited in the Treasury and the original record regarding the auction proceeding was not traceable.

Once the sale has been issued to the Petitioner, the certificate has been issued to the Petitioner, the Sub-Divisional Magistrate concerned cannot hold that no auction had taken place because the record regarding the auction proceeding were not available. The view taken by Respondent No. 3 that auction was invalid for the reasons given by him is incorrect.

It may further be noted that once the auction had taken place and had been confirmed, the same cannot be set aside on an application filed before the Additional District Magistrate (Finance & Revenue) Respondent No. 3, on the basis of report submitted by the Sub-Divisional Magistrate. The law provides particular procedure to be adopted for setting aside the auction. Rule 285-I provides that the objection against the auction can be filed within thirty days from the auction. Respondent No. 4 had filed application/representation after seventeen years from the date of auction. Secondly the objection should have been filed before the Commissioner. The decision is to be taken by the Commissioner after giving opportunity of hearing to the parties. The entire procedure adopted by Respondent No. 3 is wholly unwarranted and against law. The order confirming the sale was passed by the Collector, Ghazipur who had authority to pass such order under Rule 285J and his order can be set aside by the Commissioner under Rule 285-I. Respondent No. 3 has no jurisdiction to cancel the auction proceedings under the Rules.

Lastly, it may be noted that Respondent No. 4 whose property has been auctioned has not challenged auction by filing any objection. Respondent No. 5 is son of Respondent No. 4. He cannot challenge the auction proceedings to relation to the property of his father in the present case. He does not claim that he is joint-owner of the property sold in auction. In the counter affidavit, it has been alleged the Respondent No. 4 is paralytic. Even assuming so, Respondent No. 4 could have filed objection himself by appointing attorney in accordance with law. The objection filed by Respondent No. 5 was not maintainable at whose instance the impugned order has been passed by Respondent No. 3.

In view of the discussions made above, the present writ petition is allowed with costs and the impugned order dated 2nd November 1995, passed by Respondent No. 3 is hereby quashed.