- (1.) K. C. Bhargava, J. The petitioner in this writ petition has prayed for quashing the orders dated 19-5-1976 passed by the Sub- Divisional Magistrate, Misrikh, Dis trict Sitapur, contained in Annexure-2, the order dated 7-5-1984 passed by the Commissioner, Lucknow Division, Luck-now, contained in Annexure-5 and for a further direction to the opposite parties not to implement the above said orders.
(2.) THE facts of the case, as stated hi the writ petition, are that one Parmeshwr Din took a loan from the State of Uttar Pradesh and mortgaged his land. He therefore, executed a sale-deed on 26th December, 1969 in respect of plot No. 580, measuring 2. 476 acres in favour of one Ram Singh and another sale- deed hi respect of plot No. 220 measuring 2. 68 acres in favour of Chaman Singh and Teji. Parmeshwar Din died without paying the government dues and therefore proceed ings for auction of the plots in dispute were started and were notified for recovery of the amount of loan. 10th February, 1976 was fixed for auction of the land in dispute and plot Nos. 580 and 220 were auctioned on 10-2-1976 which were purchased by the petitioner in the above public auction and the entire amount of the bid i. e. Rs 5,100/- was deposited by the petitioner in Government Treasury on 24-2-1976. Nobody else, ex cept one Srimati Sursata Devi who had no concern with the land in dispute, filed any objection. THE Sub- Divisional Officer, Misrikh, District Sitapur confirmed the auction by his order dated 19-3-1976 subject to the condition that if the objec tor, Srimati Sursata Devi, wanted to get the auctioned plots released then she would have to deposit the entire loan amount upto 25th March, 1976. A copy of this order is Armexure-1 to the writ petition. No amount was deposited by Srimati Sursata Devi upto 25-3-1976. On 1- 5-1976 Srimati Sursata Devi along with one Srimati Ramdei moved an application before the Sub- Divisional Officer, Mis rikh, distt. Sitapur alleging therein that the plots in dispute were auctioned at a very low price and therefore the auction be set aside. Smt. Ramdei also alleged that she had 1/2 share in plot No. 269 which had also been auctioned and there fore the auction was illegal. On 19-5-1976 the Sub-Divisional Officer, Misrikh, without giving any notice to the petitioner, set aside the earlier auction and directed re-sale of the plots in dispute. A copy of this order is Annexure-2 to the writ petition. THE petitioner moved an applica tion before the District Magistrate, Sitapur alleging that the Sub-Divisional Officer had no jurisdiction to cancel the auction which was confirmed nor he had any right to direct for re-sale of the plots in dispute. THE District Magistrate called for a report and in that report it was mentioned that the orders of the Sub-Divisional Officer was correct. On that the District Magistrate passed order on 19-6-1976 by merely writing "seen". THEre after the petitioner filed an appeal before the Commissioner, Lucknow Division, Lucknow but the same was also dismissed by the Commissioner on 12-7-1976. THE petitioner had not been given any notice by the Commissioner nor was he given any opportunity of hearing and behind his back a report was submitted by the Munsarim and on that report the Com missioner dismissed the revision as not maintainable. On 28-6-1976 the plots in dispute were again auctioned. Against the order of the Commissioner the petitioner filed Writ Petition No. 2073 of 1976 which was allowed and the Commissioner was directed to restore the revision of the petitioner at its original number and decide the same afresh. THE Commis sioner restored the revision and again dismissed the same on the ground that the revision was not maintainable on holding that as the land was auctioned at a very low price therefore it was rightly cancelled. A copy of this order is An-nexure-5 to the writ petition. It is alleged by the petitioner that before the Commis sioner a copy of Government Order No. 1/1/76 (2) (6) Rajaswa-7 dated 17-1-1976 was shown by him in which it was provided that all the Assistant Collectors and In-charge of Tahsils were authorised to sanction the auctions and therefore the first auction in favour of the petitioner was valid and the sanction order passed by the Sub-Divisional Officer was also in accordance with law. It was also raised before the Commissioner that after con firmation of the auction in favour of the petitioner he acquired rights and became necessary party and therefore he had the right to challenge the subsequent orders passed by the Sub- Divisional Officer setting aside the auction. Opposite party No. 6 only has filed counter-affidavit where-in it has been alleged that plot No. 269 M, measuring 0. 35 acres was wrongly included in the aforesaid auction along with plot Nos. 580 and 220. Smt Ram Dei was the recorded tenure holder of plot No. 269-M and her share was wrongly included in the above auction held on 10-2-1976. Smt Sursata Devi filed her objection on 16-2-1976 with respect to the auction held on 10-2-1976 wherein she had stated that she had purchased plot No. 220 (area 2. 68 acres) through a registered sale-deed executed by Chaman Singh and Teji Ram. It was also stated that late Parmeshwar Din had the liability of Rs 11,000/- regarding Government dues and under the orders passed by the Sub-Divisional Officer a sum of Rs 5,600/- had been deposited representing half of the above dues. This amount was deposited in order to get the release of plot No. 220 from the aforesaid auction and orders were passed accordingly but the said plot had been illegally included contrary to the earlier orders in the above auction. It was also stated that plot No. 580 alone was suffi cient to cover up the repayment of Government dues. It was clearly stated in the objection that the said auction had not been closed for an adequate amount. A report was submitted by the Naib-Teshildar dated 22-2-76 to the Sub-Divisional Officer recommending that the above auction had been improperly con ducted and that the auction bid was closed for a very grossly inadequate amount. All the three plots had been attached earlier and on the application of Chaman Singh and Teji Ram Plot No. 220 (measuring 2. 68 acres) was excluded from the auction for which purpose a sum of Rs 5,786. 55 paisa was deposited on 14-11-1975. It has been wrongly stated in para 5 of the writ petition that Srimati Sursata Devi, op posite Party No. 4 had no concern with the land in dispute. The Sub- Divisional Officer was only authorised to conduct the sale and he could not have confirmed the sale. Under the provisions of Rule 285-J of the U. P. Zamindari Abolition and Land Reforms Rules only the Col lector has been empowered to confirm the sale and in the Revenue Board Notification No. 1/1-76 (3)-6 dated 17-1-1976 it has been provided that the sale in the auction is to be confirmed by the Collector himself and not by the Sub-Divisional Officer and therefore the order vide Annexure-1 to the writ petition dated 19-3-76 passed by the Sub- Divisional Of ficer confirming the auction was absolute ly without jurisdiction and was a nullity in the eye of law. While the objection filed by Srimati Sursata Devi was being investigated, Srimati Ram Dei whose share in the above plot No. 269-M had also been illegally auctioned without notice or information to her, she imme diately on acquiring the knowledge of the said proceedings filed her objection on 5-5-1976. It has been wrongly stated in the para under reply -that Srimati Ram Dei filed her application along with Srimati Sursata Devi filed her objection Separetely on 16-2-1976 and 1-5-1976 while Smt. Rama Devi filed her objection. The report of the Naib Tehsildar dated 17-5-1976 submitted to the Tehsildar on the applications filed by Srimati Sursata Devi and Srimati Ram Dei is Annexure-F-6 to the counter-affidavit. The earlier auction held on 10-2-1976 had been con ducted illegally by including the property which was not liable to the above auction proceedings and therefore the entire proceedings were illegal and were and were rightly not approved and not con firmed. In view of the inherent defect in the auction proceedings the said proceed ings were nonitalest in the eye of law and no notice was required to be given to treat the earlier auction as a nullity. The Sub-Divisional Officer had no authority to confirm the auction and the confirma tion of the auction done by him is without any valid authority. The auction was set aside on the ground of grossly inadequate price and the inclusion of the property which was not the subject matter of the auction. After perusing the report the District Magistrate wrote "seen" and filed the same which signified that the above authority had approved the report and action was permitted to be taken as recommended in the said report. The Commissioner in his order dated 17-5-1984, contained in Annexure-5 to the writ petition, applied his mind and correctly dismissed the revision holding that the Collector had rightly allowed re-auction after receiving the report of the Sub-Divisional Officer. The re-auction was, therefore, validly held. The Commis sioner did not dismiss the revision on technical grounds. As the auction of 10-2-1976 had not been confirmed there fore there was no question of the petitioner being put in possession of the plots in question. The petitioner has not shown any crop in the fields and the allegations to the contrary are false. Learned counsel for the petitioner, learned Standing Counsel for opposite parties 1,2 and 3 and the learned counsel for opposite party No. 6 have been heard. Learned counsel for the petitioner has argued that the property which was sold for realization of the amount by means of the auction dated 10-2-1976 was pur chased by the petitioner. According to him the entire amount of the bid was deposited by the petitioner on 24-2-1976, thereafter th Sub-Divisional Officer con firmed the auction by his order dated 19-3-1976 a copy of which is Annexure-1 to the writ petition. A perusal of this order, goes to show that the Sub-Divisional Officer while confirming the auction granted time till 25th March, 1976 to the objector to get the land released after depositing the amount due. It may be recalled at this stage that some objec tion was filed by Smt. Sursata Devi, opposite party no. 4 before the Sub-Divisional Officer. Now the question which arises in the present case is as to whether the Sub-Divisional Officer had power under the provisions of the Zamin dari Abolition and Land Reforms Act and the Rules framed there under to confirm the sale and whether he had also power to grant tune for payment of the amount due to the objector simultaneously with the confirmation of the sale. Taking the second point at first it may be stated that the sale was confirmed by the Sub-Divisional Officer. The authority confirm ing the sale cannot grant time to the objector to pay or deposit the amount for which the recovery proceedings were taken or for which the sale was held. In this connection certain provisions of the Rules framed under the Zamindari Aboli tion and Land Reforms Act have to be perused. There are two provisions in the Zamindari Abolition and Land Reforms Rules, 1952 under which the attached property is sold. These are Section 284 and Section 286 of the Zamindari Aboli tion and Land Reforms Act. Rule 285-A provides that every sale under Sections 284 and 286 shall be made either by the Collector in person or by an Assistant Collector specially appointed by him hi this behalf. It goes to show that the sale under both the above Sections 284 and 286 of the Zamandari Abolition and Land Reforms Act, is to be conducted by the Collector in person or by an Assistant Collector specially appointed by him in this behalf. Rule 285-C of the Zamindari Abolition and Land Reforms Rules, 1952 provides that if the defaulter pays the arrears hi respect of which the land or other immovable property is to be sold, at any time before the day fixed for the sale, to the person authorised to collect the amount in arrears or to the person appointed under Rule 285-A to conduct the sale, the sale officer, on being satisfied of the payment, shall stay the sale. After the sale is held then the person who has purchased the property i. e the auction purchaser shall have to deposit 25% of the amount of the bid forthwith and if that amount is not deposited then the sale is to take place again. This provision is made hi Rule 285-D of the Zamindari Abolition and Land Reforms Rules. The entire amount of the purchase money is to be deposited within 15 days of the sale by the purchaser in the district treasury or sub-treasury and in case of default in deposit of the amount, the amount of 25% which was initially deposited at the fall of the hammer shall stand forfeited to Government and the property shall be resold. This provision is made under Rule 285-E of the Zamin dari Abolition and Land Reforms Rules. Rule 285-F of the above Rules further provides that if the proceed of the sale which is eventually made are less than the price bid by such defaulting purchaser then the difference shall be recoverable from him as if it were an arrear of the revenue. Thereafter the provisions of Rule 285-H are there to safeguard the interest of the person whose property has been sold. It provides that any person whose holding or other immovable property has been sold under the Act may, at any tune, within thirty days from the date of sale, apply to the sale set aside on his depositing in the proclamation in Zamindari Aboli tion Form 74, for the recovery of which the sale was ordered, the costs of the sale and a sum equal to 5 per cent of the purchase money, for payment to the purchaser, less any amount which might have been deposited. On making such deposits the Collector shall pass an order setting aside the sale. This provision has been made in order to give a chance to the person whose immovable property has been sold to retain the same subject to the deposit of the amounts specified in this Rule. 5% amount of the auction money deposited by the person whose immovable property has been sold is to be paid to the auction purchaser in order to compensate him for the loss occurred to him. This rule has a proviso attached to it which says that if a person applied under Rule 285-1 to set aside such sale then he shall not be entitled to make an application under this Rule.
(3.) NOW we proceed to examine the provisions of Rule 285-1. This Rule gives a remedy to the person, whose property has been sold, to apply to the Commis sioner within a period of 30 days to get the sale set aside on the ground of some material irregularity or mistake in publish ing or conducting it. It further provides that no sale shall be set aside on such ground unless the applicant proves to the satisfaction of the Commissioner that he has sustained substaintial injury by reason of such irregularity or mistake. This shows that every irregularity or mistake in publishing or conducting the sale is not a valid ground for setting aside the sale and besides satisfying the Commissioner that some material irregularity or mistake has been committed in publishing and conducting the sale the person has further to satisfy the Commissioner that he has suffered some substantial injury by reason of such irregularity or mistake and if no substantial injury has been sustained by the person whose property has been sold then he cannot ask the Commissioner to set aside the sale and the Commissioner has no jurisdiction to set aside the sale on these grounds unless he is satisfied that the person whose property has been sold has sustained substantial injury by the irregularity or the mistake committed in publishing or conducting the sale. Rule 285-J of the Zamindari Abolition and Land Reforms Rules provides that after the expiration of thirty days from the date of the sale if no such application as is mentioned in Rule 285-H or Rule 285-1, has been made or if such application has been made and rejected by the Collector or the Commissioner, the Collector shall pass an order confirm ing the sale after satisfying himself that the purchase of the land in question by the bidder would not be in contravention of the provisions of Section 154 of the U. P. Zamindari Abolition and Land Reforms Act. Section 154 of the above act deals with restriction on transfer by a bhumidhar where the land exceeds as per limit fixed by this section. Thus the Collector has no option but to confirm the sale on the expiry of 30 days if no objection has been made under Rule 285-H or Rule 285-1 or if made but has - been rejected by the Collector or the Commissioner and the Collector is duty bound to confirm the sale after satisfying himself that the provisions of Section 154 of the Zamindari Abolition and Land Reforms Act have not been contravened. Thus a perusal of this provision goes to show that the Collector has no power to grant time to the person whose property has been sold. The time which is fixed by the statute can be availed by the person whose property has been sold but cannot be extended by the Collector specially after the sale has been confirmed. There fore the time granted by the Sub-Divisional Officer on 19-3-1976 to the person whose property has been sold, to deposit the amount, has no legal sanctity and, as such, has to be ignored.;