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CASE NO.: Appeal (civil)  3361 of 2005

PETITIONER: Kedar Nath Dubey (D) By Lrs. & Ors

RESPONDENT: Sheo Narain Dubey (D) By Lrs. & Ors

DATE OF JUDGMENT: 12/05/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP(C) No.24424/2004)

ARIJIT PASAYAT, J.

       Leave granted.

       Challenge in this appeal is to the decision by a  learned Single Judge of the Allahabad High Court holding  that the auction sale on 18.8.1989 and confirmation thereof  was illegal. Kedar Nath Dubey, the predecessor of the  appellant was the successful bidder. Objection filed by Sheo  Narain Dubey, the predecessor of non-official respondents  was rejected by order dated 18.8.1989.  

A brief reference to the factual aspects would suffice.

       The writ petitioner, Sheo Narain Dubey, the predecessor  of non-official respondents had taken a loan for purchasing  pumping set from U.P. State Sahkari Agricultural Avam Gram  Vikas Bank Limited, Salenpur, Deoria. As the said loan was  not repaid within the stipulated time, proceedings were  initiated for recovery of amount as arrears of land revenue  under the Uttar Pradesh Zamindari Abolition and Land Reforms  Act, 1950 (in short ’the Act’). Land belonging to the writ  petitioner was auctioned on 18.8.1989. Bid of Kedar Nath  Dubey, the predecessor of the present appellant was  accepted. Sheo Narain Dubey filed objection under Rule  285(I) of the Uttar Pradesh Zamindari Abolition and Land  Reforms Rules, 1953 (in short ’the Rules’).  The stand taken  was that there was material irregularity in the service of  notice as well as in conducting the sale and thereby Rule  285(A) of the Rules had been violated. The said objection  was rejected and the sale was confirmed. The writ petition  was filed in 1991. Mutation proceedings had been undertaken  in the meantime by Kedar Nath. In the counter affidavit  filed before the High Court, stand taken was that the order  of the concerned authority i.e. the Commissioner, Gorakhpur  Division, Gorakhpur dated 7.1.1991 clearly indicated that  the plea of the writ petitioner was untenable. When the  amount alongwith interest and other dues were not paid, the  bank had requested for recovery proceedings. Form 73 and  Form 73 A were sent to the writ petitioner which were

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personally served. Thereafter date of auction was fixed on  18.8.1989 and the request notice was duly served. As Kedar  Nath Dubey was the highest bidder, his bid was accepted.   Considering the materials on record it was found that the  requisite procedure and the prescribed rules had been  followed and there was no necessity for interfering in  auction. It was indicated that the loan account had already  been closed on 5.2.1991 as the entire amount had been  recovered by sale of the land. It was highlighted with  reference to the order dated 7.1.1991 that Sheo Narain Dubey  was a habitual loan taker and had defaulted on many  occasions in re-paying the loans.  The writ petitioner filed  a rejoinder affidavit stating that there was no compliance  with the requirements of confirmation. The writ petitioner’s  stand was that he wanted to deposit the amount on 1.5.1991  but the same was not accepted and, therefore, he approached  Additional District Magistrate (in short the ’ADM’) to  direct the Tehsildar, Salempur to accept the amount and the  amount had been deposited on 6.5.1991.   

Primary stand before the High Court was that the  prescribed Rules were not followed, and in any event the  auction sale was confirmed by the Sub-Divisional Magistrate  (in short the ’SDM’) who did not have the authority to  confirm the sale or conduct the sale.  The confirmation was,  according to the writ petitioner, by an incompetent  authority and, therefore, the entire proceeding was invalid.   The High Court took the view that the application filed by  the writ petitioner for setting aside the auction sale was  full of vague and evasive statements relating to the  allegation that the norms laid down in Rule 285(I) were not  confirmed and there was material irregularity. The High  Court, therefore, held that the Commissioner was right in  holding that the order passed by the Commissioner did not  suffer from any infirmity. However, it was held that the  crucial issue was that the Collector is the authority to  confirm the sale. In this context reference was made to  Rules 285-A, 285-H, 285-I, 285-J, 285-K and 285-L and it was  held that under Rules 284 and 285 the confirmation of the  sale has to be done either by the Collector in person or by  an Assistant Collector specifically appointed by him in that  behalf. It was held that the SDM did not have any authority.   A reference was made to a Notification dated 17.1.1976 to  conclude that the Assistant Collectors of the First Class  who are in charge of the Sub Division can discharge the  function of the Collector subject to the condition that the  sales are approved by the Collector. The High Court was of  the further view that except power of approval of sale, the  SDM has every other power of Collector. It was, therefore,  held that the Collector alone is empowered to confirm the  sale and issue sale certificate.  The Assistant Collector is  not authorized in that behalf in view of the scheme of the  Rules as indicated in the notification dated 17th January,  1976.

       In support of the appeal, learned counsel for the  appellant submitted that the High Court considered a new  ground of challenge which is impermissible. After having  noticed that the respondents did not make out a case for  interference in terms of Rule 285-H it proceeded to consider  an issue which was not even pleaded in the Writ Petition.  High Court erroneously made reference to 17th January,  1976 notification without noticing that other notifications  which held the field clearly indicated that the Sub- Divisional Officer has the power to accord approval to the

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auction sale. Particular reference in this regard was made  to Notification dated 11.6.1953 and letter of the Secretary,  Revenue Board U.P. dated 7.7.1983. As the Writ Petitioner  rested its case on Rule 285-I and the High Court did not  find anything irregular in the order of the Commissioner  holding that the provision to Rule 285-I had been complied  with, no interference by the High Court was called for.

       In response, learned counsel for the non-official  respondents submitted that the question of confirmation was  intermittingly linked with the question of legality of the  auction which was impugned. According to him the High  Court’s order does not suffer from any infirmity to warrant  any interference. Rules 285-A, 285-H, 285-I, 285-J, 285-K  and 285-L read as follows:     "285-A \026 Every sale under Sections 284 and  285 shall be made either by the Collector in  person or by an Assistant Collector specially  appointed by him in this behalf.  No such  sale shall take place on a Sunday or other  gazetted holiday, or until after expiration  of at least thirty days from the date on  which the proclamation under Rule 282 was  issued.

285-H \026 Any person whose holding or other  immovable property has been sold under the  Act, he 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% of the purchase money;  and  

(b)     for payment on account of arrears,  the amount specified in the  proclamation in Z.A. Form 74 for  recovery of which sale was ordered,  less any amount which may, since  the date of such proclamation of  sale have been paid on that  account; and

(c)     the cost of the sale.

On the making of such deposit, the Collector  shall pass an order setting aside the sale.

Provided that if a person applied under Rule  285-I to set aside such sale he shall not be  entitled to make an application under this  rule.

285-I \026 (i) At any within thirty days from  the date of 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

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satisfaction of the Commissioner that he has  sustained substantial injury by reason of  such irregularity or mistake;

(ii)    deleted.

(iii) The order of the Commissioner passed  under this rule shall be final.

285-J \026 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-I  has been made or if such application has been  made and 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 bidder would not be in contravention  of the provisions of Section 154 every order  passed under this rule shall be final.

285-K \026 If no application under Rule 285-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  a sale on the ground of fraud.

285-L \026 Whenever the sale of any holding or  other immovable property is set aside under  Rule 285-H or Rule 285-I the purchaser shall  be entitled to receive back his purchase  money plus an amount not exceeding five  percent of the purchase money as the  Collector or the Commissioner, as the case  may be, may determine."                

 At this juncture, it would be necessary to take note of  the Notification dated 11.6.1953 issued by the Revenue  Department and published in U.P. Gazette dated 13.6.1953.  The Notification dated 11.6.1953 reads as follows:

       "Revenue Department Notification No.  1756/1A-1073-53 dated June 11, 1953,  published in U.P. Gazette dated June 13,  1953:

In exercise of the powers conferred  by clause (4) of Section 3 of the  Uttar Pradesh Zamindari Abolition  and Land Reforms Act, 1950 [(Act 1  of (1951)], the Governor is pleased  to empower all the Sub Divisional  Officers in Uttar Pradesh except  those in the districts of Almora,  Garhwal, Tehri Garhwal and Rampur  to discharge all the functions of a  "Collector" under the said Act."

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The Notification makes the position clear that in all  the districts of Uttar Pradesh except districts of Almora,  Garhwal, Tehri Garhwal and Rampur SDOs were authorized to  discharge all the functions of the Collector under the Act.   A bare reading of the Notification dated 11.6.1953 as  published in the official gazette dated 13.6.1953 shows that  it empowered all SDOs in Uttar Pradesh except those in the  enumerated districts to discharge all the functions of the  Collector under the Act. Letter of the Secretary, Revenue  Board, U.P. dated 7.7.1983 also throws light on the  controversy. It related to discharge of power under various  provisions of the Act. It noted that by notification of  5.12.1968 Sub-Divisional Officers have been authorized to  discharge all functions of the Collector under the Act  except Section 198. Prima facie the stand of the appellant  is correct.  It appears that these pleas were not considered  by the High Court. We remit the matter to the High Court for  considering it in accordance with law. We make it clear that  no opinion has been expressed by us on the merits of the  case. The High Court may dispose of the matter as  expeditiously as possible as the writ petition is pending  for more than a decade. It would be proper for the High  Court to hear the matter afresh and take a decision on the  various issues involved, as there are certain vital  questions which were not considered by the High Court.  The  effect and relevance of the notification dated 11.6.1953 and  the letter dated 7.7.1983 shall be considered.  

       Appeal is disposed of in the aforesaid terms with no  orders as to costs.