http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: SMT. SHANTI DEVI

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT:       27/05/1997

BENCH: K.S. PARIPOORNAN, K. VENKATASWAMI, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:                THE 9TH DAY OF SEPTEMBER, 1997 Present:                 Hon’ble mr. Justice S.C.Sen                 Hon’ble Mr. Justice M. Jagannadha Rao R.K. Kapoor,  P. Verma, S.K. Srivastava, B.R. Kapur and Anis Ahmed Khan, Adv. for the appellant Tripurari  Ray,   Adv.  for  Mukul  Mudgal,  Adv.,  for  the Respondent.                       J U D G M E N T      The following Judgement of the Court was delivered: M.JAGANNADHA RAO, J.      Learned granted.      The appellant  filed objections  before the  Divisional commissioner,  Lucknow   is  regard   to  the  sale  of  her agricultural land  in  an  extent  of  8.50  acres  held  on 25.2/1982 and  conformed on 2.8.1982 under the provisions of Section 279  of the  Uttar Pradesh  Zamindari Abolition  and land Reforms  Act, 1950,  (hereinafter called the Act).  The Commissioner,  by   order  dated   26.9.1983  dismissed  the objections.   The writ petition of the appellant questioning the same  was dismissed by the High Court on 7.5.1997.  This appeal arises out of the said order.      The sale  was conducted for recovery of arrears of Bank Loan in  a sum of Rs. 11,619.73 (together with interest) due tot he  Central bank  of India, Branch Sitapur pursuant to a certificate for  recovery issued  under Section  11A of  the U.P. Agricultural  Credit Act,  !973.   The revenue sale was for a  loan of  Rs.13,000/-.  The Land was under mortgage to the bank for a loan of Rs.7,000/- obtained for purchase of a pump-set.  The auction sale dated 25.2.1982 was confirmed by the Assistant  Collector  on  2.8.1982  after  obtaining  an affidavit from  the purchaser that even after this purchase, the purchaser’s  holding remained below acres 12.50.  During the pendently  of this  SLP, the  appellant was  directed to deposit a  sum of  Rs. One lakh by order dated 16.6.1997 and the same has been deposited in this Court.  By another order dated 15.7.1997,  the said  amount has  been directed  to be invested in a short terms deposit.      The commissioner set out the appellant’s objections and to the  purchaser’s plea  but did  not give  findings on the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

various points except the one relating to service of notices of sale.   He held that notices were issued to the appellant regarding attachment and sale, the sale was adjourned and in regard to  the notice  for sale  on 25.2.1984  the same  was refused by  the appellant.   He  said that in the absence of objection to  the sale  within 30 days of sale, the sale had to be confirmed by the Assistant Collector and this was done on 2.8.1982.   Through  a  contention\,  among  others,  was raised that  if acres 8.50 are added to the existing holding of acres  5.00 held  by the  action purchaser,  his  holding would exceed acres 12.50, as prescribed under section 154(1) of the Act, no finding was given by the Commissioner on this question.   He also  said that  before him, the objector was given a fresh opportunity on sympathetic grounds to pay debt but the same was not paid.      In the  writ petition,  the appellant  raised  all  the objections that  were raised  before the  Commissioner.  The learned Judge held that notice of sale proceedings was given to the appellant, the same was not availed of, that in fact, the sale  notice for  25.2.1982 was refused by the appellant and none  was present  on appellant’s behalf at the auction. The High  Court also  noticed that  the commissioner  gave a fresh opportunity  to the  appellant to  pay the loan amount but the  same was  not availed of.  So far as Section 154(1) of the  Act is  concerned, the High Court felt  that in view of  the   decision  of  this  court  in  Kripa  Shankar  Vs. Consolidation 1979  (4) SCC  199, even  if  the  purchaser’s holding would  go  in  excess  of  acres  12.50,  after  the purchase, it would be for the Gaon Sabha to claim the excess from the  purchaser and  this was because of sections 163 of the Act  permitting taking  over of  the excess  by the Gaon Sabha.  Such a provision showed that the sale in favour of a person whose  holding would  exceed acres  12.50  after  the purchase was  not void  but was  voidable at the instance of the Gaon  Sabha who could take over possession under section 163.   In other  words, the  High Court assumed that section 163 was  in the  statute book  as on 25.2.1982.  This, as we shall show,  is not  correct.   Reliance was  also placed on Gaon Sabha  Vs. Dy.  Director of Consolidation, U.P. Lucknow 1968 R.D.  168 by  the High  Court to  say that  restriction under section  154 did  not apply  to involuntary  sales and that the  right of  the State  to acquire  land in excess of acres 12.50  from the  purchaser always  remained.   Learned Judge also  held that Section 154 dealt with transfers inter vivos and  did not deal with the situation which might arise out of involuntary sales .  The writ petition was dismissed. It is  against this  judgement that  this  appeal  has  been preferred.      In this  appeal, the same contentions which were raised before the  High Court  were raised.    We  have  heard  the counsel on both sides.      The main  points  for  consideration  are  whether  the appellant who  did not file objections under Rule 285 H or I within 30  days  of  sale  could  file  an  objection  after confirmation that  the Assistant  Collector  has  not  given effect to  section 154(1)  of the  Act and whether there was non-application of  mind by  the Assistant Collector, at the Stage of  confirmation to this question?  If so, what relief is to be given?.      So far  as the  filling of  an application  for setting aside the sale is concerned, the same has to be filed within 30 days  of sale  under Rule  285-H of  the  U.P.  Zamindari Abolition and  Land Reforms  Rules, 1952 (hereinafter called the ’Rules’)  (which is  akin to  Order 21  Rule 89  CPC) or under Rule  285 I  (which is  akin to Order 21 Rule 90 CPC).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

Rule 285  I refers  to material  irregularity or  mistake in publishing or  conducting the  sale and proof of substantial injury by  reason of  the irregularity  or mistake.   If  no application is filed under Rule 285 H or I within 30 days of sale, the  sale shall become final and sale certificate will be issued  under Rule  285 J.   If  no application  is filed under Rule 285- I within the time allowed, all claims on the ground  of   irregularity  or   mistake  in  publishing  and conducting the  sale shall  be barred  subject of  course to establishing fraud  in a  civil court  by way  of a  regular suit.  We shall go into these provision in greater detail, a little later.      In view  of the  finding of the Commissioner as well as the High  Court that  the appellant  had notice  of the sale proceedings and that she had refused the sale notice for the appellant to  urge the  question of absence of notice of the sale on  25.2.1982.   If therefore  the appellant  is to  be treated as having notice of sale, then the non-filing of the application under  Rule 285  I within  30 days of sale, will preclude  any  objection  being  raised  on  the  ground  of "material  irregularity   or  mistake   in   publishing   or conducting the  sale", even  if we  assume that the value of the property  of acres  8.50 as on 25.2.1982 was assessed to be Rs.43,664/-  on 14.12.1982 by the revenue authorities and even  if  that  can  be  treated  as  proof  of  substantial prejudice.  So this question is foreclosed.      So far  as the  plea that  the pump-set  and  buffaloes should have  been first  proceeded against before proceeding with the sale of immovable property under section 279 of the U.P. Act,  1951, even  assuming the  point could  be  raised after sale,  the respondents have raised a plea that in view of Section  282(3) of the Act, clauses (a) to (o) of section 60(1) CPC  are attracted and these were not attachable even. Question arises  whether the  pump-set is  an ’implement  of husbandry’ belonging  to an  agriculturist and  except  from attachment and  sale under  sub-clause (b) of section 60(1). We notice  that  there  is  some  conflict  between  various propose to go into that question.  We find that the case can be disposed of an another ground.      We may  here also  state that the order dated 20.8.1982 dealing with  confirmation of  sale of  the collector merely says that  an  affidavit  has  been  filed  by  the  auction purchaser that  after sale,  his holding  would  not  exceed acres 12.50  and that  the  affidavit  is  attached  tot  he confirmation order.   The  Assistant Collector merely states as follows:-      "The affidavit  of 12 1/2 acres has      been given by the purchaser and the      same is attached".      Now in  the application  filed by  the appellant before the Commissioner,  it had  been stated  by the  appellant in para 10  and 11 that the purchaser was already holding acres 5.05 in  her name  in Village Jamauli.  This was disputed by the auction  purchaser.  It is to be pointed out that in the SLP grounds (ground No.14) it is stated that a photo copy of the Khatauni  of the village Jamauli pertaining to Khata No. 325 was brought on record to show that the auction purchaser was already  owning acres 5.06.  In the counter filed by the purchaser before  us,  it  is  stated  (para  68)  that  the appellant’s allegation  in this  behalf is  not correct  and that the  purchaser does not possess more than Ac. 12.50 and that an  affidavit to  that  effect  was  filed  before  the Assistant Collector.   The  allegation that  in Khata 325 of this village it is shown that the purchaser owned 5.06 acre, is denied.  We have already stated that the Commissioner has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

not given  a finding on this issue though he has referred to the rival  contentions in  this behalf.   The High Court, as already stated,  said section 154 (1) deals with restriction on sales  or  gifts  inter  vivos  and  does  not  apply  to execution sales and that in any event, it was the Gaon Sabha to recover the excess land, if any, from the purchaser.      Before we go into main aspect we shall first clear some procedural arising  out of  Rule 285-k.    The  question  is whether   the appellant  could  have  raised  this  question arising out  of rule  285-J read  with Section 154 (1) after the confirmation  of sale  and without  filing any objection within filing  any objection within 30 days of the sale?  We shall first refer to Rule 285-K:      "Rule 285-K:    If  no  application      under Rule 215-I is made within the      time allowed  therefore, all claims      on the  ground of  irregularity  or      mistake in publishing or conducting      the sale shall be barred:      Provided that  nothing contained in      this rule shall bar the institution      of a  suit in  the civil  court for      the purpose  of setting  aside  the      sale on the ground of fraud".      In our  view, the  objection that  after the court sale vested Acres  12.50 in  the purchaser, she will hold land in excess of  Ac.12.50  is  not  an  objection  concerning  any "irregularity or mistake in the publishing or conducting the sale".   We may state that the procedure for proclamation of sale is  contained in Rule 282 and the procedure for sale is set out  in Rules  285,285-A to  Rule 285-G.   None  of them refers to  section 154  (1) of  the Act which deals with the restriction  of  a  purchaser  holding  land  in  excess  of Ac.12.50 after  a sale  or gift.   The next rule, Rule 285-H deals with  filing of  an application  by the  person  whose property  is   sold,  for  setting  aside  sale  on  deposit (corresponding to Order 21 Rule 89 CPC) and after that, Rule 285-I deals with the filing of an application, on the ground of  material   irregularity  or  mistake  in  publishing  or conducting the  sale.   It is  only when we come to a latter stage of  the proceedings,  namely, after  expiry of 30 days from date  of sale, that is, the stage of Rule 285-I that it requires the  confirmation-authority to  be "satisfied" that there was  no contravention  of Section  154 of the Act.  In our view,  therefore, any  objection raised  by  the  person whose  property  has  been  sold  to  the  effect  that  the collector has  not, at the stage of confirmation applied his mind to  the question  whether after  the revenue  sale, the purchaser would  be holding  land in  excess of Ac.12.50, is not an  objection relating to any irregularity or mistake in publishing or conducting the sale and hence it is not barred by Rule  285-k.   The sale  here was over on 25.2.1982.  The confirmation order  was passed on 2.8.1982.  Rule 285-J read with Section 154 (1) therefore raises an issue which relates to a  factor which  the Confirmation.   In our view, Section 285-K does not bar this objection.      This aspect  becomes clearer if we read the language of Rule 285-J  in respect of the duties of the Collector at the time of ’confirmation’ of sale.  It reads:-      "Rule 285-J:  On the  expiration of      thirty days  from the  date of  the      sale, if  no such application as is      mentioned in  Rule  285-H  or  Rule      285-J has  been  made  or  if  such      application  has   been  made   and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

    rejected by  the Collector  or  the      Commissioner, the  collector  shall      pass an  order confirming  the sale      after satisfying  himself that  the      purchase of land in question by the      bidden    would     not    be    in      contravention of  the provisions of      Section 154.   Every  order  passed      under this rule shall be final."      It is  clear that  a statutory  duty  is  cast  on  the collector to  keep Section  154 in  mind  at  the  stage  of confirmation of  Sale.   If it  is an  objection as  to  non application of  mind to  a provision statutorily relevant at the stage  confirmation, the  objection cannot be treated as an objection  relating to  the irregularity or mistake at or before the  stage of  sale.  That is why Rule 285-K will not come in the way.      The question also arises that if no objection was filed within 30 days of sale under: Rule 285-I or J, then no other application could  have been  filed before  the Commissioner after the Confirmation.  Assuming it to be so, we are of the view that  the writ  petition filed  by the appellant can be treated as  a  challenge  to  the  order  of  the  Assistant Collector’s that  he did not apply relevant factors which he was bound  to take  into account while confirming the order. The point  raised under  section 154(1)  does not  refer  to ’fraud’ and therefore remedy of suit mentioned in proviso to Rule 285K is not attracted.      Once the  above hurdle is crossed, the next question is whether such  an issue relevant to Section 154 can be raised in relation  to execution  sales.   Section 154  of the  Act deals with restrictions on transfer by a bhumidar.  It reads as follows:-      "Section   154.   Restrictions   on      transfer by a bhumidar: (1) Save as      provides in  sub  section  (2),  no      bhumidar  shall  have  a  right  to      transfer by  sale or gift, any land      other than  tea gardens  any person      where the  transferee shall,  as  a      result of such sale or gift, become      entitled  to  land  which  together      with land,  if  any,  held  by  his      family  will   in  the   aggregate,      exceed   5.0586   hectares   (12.50      acres) in Uttar Pradesh."      No doubt,  there is  no definition of sale in section 3 of the  Act which  deals with  the meaning of several words. But, it  has to  be noticed  that Rule  285-I  requires  the Collector to  ’satisfy’ himself whether the purchase of land in question  by the  bidder would not be in contravention of the provisions  of Section  154.   Obviously, it is intended that those  who purchase  in revenue sales should not have a greater  advantage   over  those   who  obtain  property  by transfers transfer inter-vivos.      In our  view, therefore,  the High  Court was  wrong in thinking  that  the  provisions  of  Section  154  were  not applicable to  court sales.  If the ruling in Gaon Sabha vs. Dy.Director of  Consolidation, Lucknow[1968  R.D.168] relied upon by  the High  Court expressed such a view, then it must be held  to be  not correct  expressed such  a view, then it must be  held to  be correct  in law  in view of the express reference to  section 154  in Rule  285 J.   Obviously,  the attention of  the High  Court in  the present  case was  not drawn to rule 285-J.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

    For the  same reason,  it is not possible to accept the view, at  any rate  so far  as revenue sales are concerned - that  it will only be for the Gaon Sabha to claim the excess from the  purchaser.   It is  true,  while  dealing  with  a private transfer  by way  of gift, such a view was expressed by this Court in Kripa Shankar Vs. Director of Consolidation [1979 (4)  SCC 199]  but that  case related  to a  gift deed dated 19.12.1964  and this  court referred to Section 163 of the Act which enabled the Gaon Sabha to eject the transferor from the  excess land and held that the gift as such in that case was  therefore not  void.   In fact  case,  this  Court pointed out  that in  connection with  some  other  type  of transfers covered  by Section  166, the  legislature had, in contrast, declared  such transactions  to be void whereas no such words  were used  in Section  154 or  section  163  and section 163  permitted the  Gaon Sabha to acquire the excess land for  the transferee  who detained  the excess through a sale or gift inter vivos.      The above  case is  clearly distinguishable  because we are here  not concerned  with the question whether the court sale is  void or  voidable.   We are  here concerned  with a statutory provision  contained in  Rule 285-J which mandates the Collector,  to be  "satisfied" about  a certain  factual position at the stage of confirming a sale.      We may  here point  out that after Kirpa Shankar’s case (supra) in  1979, section  163 permitting Gaon Sabha to take over the  excess land  was deleted  by U.P.  Act 20  of 1982 w.e.f.  3.6.1981  and  section  166  was  introduced  w.e.f. 3.6.1981  which   said  that   ;  "Every  transfer  made  in contravention of the provisions of this Act, shall be void". Obviously,  Kirpa   Shankar’s  case  cannot  apply  to  post 3.6.1981 sales.   The case before us deals with a sale dated 25.2.1982 and  confirmation  dated  2.8.1982.    We  do  not however purpose  to  go  into  this  aspect  because  it  is sufficient for the appellant to replay upon the duty cast on the confirmation authority in Rule 285-J to take section 154 into account and prove that duty was not discharged.      The question  then is  whether the  Assistant Collector was  ’satisfied’   on  the  material  before  him  that  the purchaser did  not contravene  Section 154(1).  In our view, the statement  in the  confirmation order  by the  Collector that the affidavit of the purchaser that she will not, after purchase, exceed Ac. 12.50 is "attached" to the confirmation order, does  not amount  to ’satisfaction’  of the  officer. which was  to be  arrived  at,  on  an  examination  of  the relevant revenue  records of  the area or village concerned. The mere  statement of fact by the purchaser by an affidavit before the  Collector that  the purchaser did not exceed Ac. 12.50 does  not help.  The word ’satisfied’ means that there must be  evidence of  application of  mind by  the authority concerned.  Merely attaching the affidavit of the purchaser, in our  view, does  not amount to application of mind but on the other  hand, amounts  to non-application  of mind.    As already stated,  the Commissioner  merely  referred  to  the contention of  purchaser that  her holding,  after purchase, did not  exceed Ac.  12.50.  The Commissioner, also referred to the  appellant’s contention  to the contrary.  he did not give any finding on this behalf.  The High Court’s attention as already  stated, was not drawn tot he express language of Rule 285-J  which refers  to section  154.   The High  Court therefore proceeded  on the  assumption that Section 154 did not apply  to involuntary  sales and it also thought that it was for  the Gaon  Sabha to intervene.  It did not enter any finding  regarding   the  ’satisfaction’  of  the  Assistant Collector as  required by  Rule 285-J.   As  stated earlier,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

even if  the appellant’s application before the Commissioner is to  be treated  as not  maintainable, it  is open  to the appellant to  challenge  the  order  of  Confirmation  dated 2.8.82 on  the ground  of violation  of the  requirement  of Section 154  and we  can read  the said  order and  quash it inasmuch as  we are not dealing with irregularity or mistake in the proclamation or conduct of sale.  We are only dealing with an  illegality arising  out of  the confirmation  order passed under  section 285-J  in not  noticing section 154(1) and this can be corrected directly in writ jurisdiction.      In the  result, we  hold that  the confirmation of sale order dated  2.8.1982 passed  by the Assistant Collector and the order  of the Commissioner dated 26.9.1983 rejecting the objections of  the appellant are vitiated.  The judgement of the High  Court, for  the reason  given above,  is also  set aside.      Finally, we  come to  the question  whether the  matter must be  remitted to  the confirmation  authority to go into this question.   We  are of the view that this is not a case where at this distance of time, we should remand the case to the Commissioner.   There  is no  question of  remitting the matter  to   the  Assistant   Collector   who   passed   the confirmation order  to go  into this question.  Having heard the counsel and taken noticed of the fact that the appellant has now  deposited Rs.  1 lakh as directed by this court and taking note  of the fact that the Commissioner, irrespective of the  points in  issue, also  inclined to give a chance to the appellant to the deposit the money, we feel that this is a fit  case where instead of going into the question whether the  sale  was  void  in  view  of  section  166  which  was introduced w.e.f.  3.6.81- the  sale should nit be confirmed and  that   consequently  the  appellant  who  has  been  in possession  during   the  proceedings  throughout  and  also obtained an  order of  status quo from this court on 16.6.97 should be allowed to retain the property.      The amount  of Rs.  1 lakh  has been  invested in short term deposit in this Court.  The same shall, on maturity, be sent to  the High Court to the credit of civil writ petition No.6557 of  1983.   The amount  due as  per the sale warrant amount with  interest will be ascertained and the same shall first be  disbursed to  the concerned  revenue authority for satisfying the  certificate issued  to  the  said  authority order section  11-A of  the U.P.   Agricultural  Credit Act, 1973.   The High  Court will  ascertain the  amount  payable under the  Certificate together  with interest,  if any,  as stated in  the sale proceedings as incurred by the Govt.  If the amount  in deposit  now transferred to the High Court is not  sufficient,   the  appellant   has  to  make  good  the deficiency.   The amount deposited by the purchaser shall be returned to  her together with interest at 12% from the date of deposit.   The  interest amount  payable to the purchaser shall be disbursed out of the amount now being.