- (1.) R. H. Zaidi, J. Heard learned counsel for the petitioner and Mr. S. Chaturvedi, Advocate, who has appeared for respondent No. 3.
(2.) BY means of this petition filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorariquashing the order dated 19-3-2001 passed by the respondent No. 1 allowing the objection and remanding the case to the Sub-Divisional Magistrate concerned for decision afresh on merit after affording opportunity of hearing to the parties concerned. It appears that in the recovery proceedings, the property owned by the petitioner and other persons was put to public auction. The petitioner offered the highest bid, consequently his bid was accepted and the property in dispute was sold in his favour. Subsequently, an objection appears to have been filed by the contesting respondents before the respondent No. 1 claiming that auction proceedings were held illegally, behind their back and without any notice to them, they were, therefore, liable to be quashed. The respondent No. 1, after hearing the parties concerned, allowed the objection by order dated 19-3- 2001 and remanded the case to the Sub-Division Magistrate concerned for decision afresh, as stated above. Hence, the present petition. Learned counsel for the petitioner vehemently urged that the impugned order has been passed by the Commissioner, Allahabad Division, Allahabad without affording an opportunity of hearing to the petitioner. It was also urged that the recovery certificate was issued against a dead person, the same was, therefore, legally non est. The impugned order, according to him, as such was, liable to be quashed.
(3.) ON the other hand, learned counsel appearing for the contesting respondents supported the validity of the order passed by the Commissioner. It was urged that the findings recorded by the Commissioner are all findings of fact, which are based on relevant evidence on the record. It was also contended that the impugned order was passed after affording opportunity of hearing to the parties concerned. Further, if the petitioner felt that he was not given an opportunity of hearing, the remedy for the petitioner was before the respondent No. 1 himself and not before this Court under Article 226 of the Constitution of India. It was also contended that the impugned order is an order of remand, therefore, the the writ petition against the said order is legally not maintainable. I have considered the submissions made by the learned counsel for the parties and also perused the record.;