- (1.) SHISHIR Kumar, J. The present writ petition has been filed for quashing the order dated 4. 12. 1989 (Annexure 5 to the writ petition) passed by respondent No. 4 and to quash the auction dated 16. 1. 1988 made by respondent Nos. 1 to 3. Further a writ in the nature of mandamus commanding the respondents not to interfere in the peaceful possession over the petitioner's land in dispute.
(2.) THE brief facts of the case are that the petitioner has taken a loan of Rs. 14,000 from Allahabad Bank in the year 1981. Petitioner deposited a sum of Rs. 4,400 on 17. 6. 1987 towards the loan. On account of drought and unavoidable circumstances, the petitioner could not deposit the remaining amount so the bank has directed the Tehsil authorities to recover the said amount as arrears of land revenue. THE petitioner was not served any kind of notice or citation by the respondents and on 15. 1. 1988 the Amin (Collection) came to the petitioner and has received a sum of Rs. 2. 200 and a receipt to that effect was issued, which has been annexed as Annexure 1 to the writ petition. THE proceeding regarding recovery of the aforesaid amount was initiated without any information to the petitioner by the Tehsil Authorities and Tehsil authorities have auctioned the petitioner's holding of Plot No. 149 area 2 acre 85 decimal on 16. 1. 1988. When the petitioner deposited Rs. 2,200 on 15. 1. 1988, the Collection Amin has not informed anything to the petitioner regarding the auction and has assured the petitioner that the said amount will be deposited and he was permitted to deposit the remaining amount within a period of one month but the respondents authorities in an arbitrary manner behind the back of the petitioner has auctioned the property of the petitioner on 16. 1. 1988. THE aforesaid proceeding of auction was admittedly behind the back of the petitioner without any notice and citation. When on 25th March, 1988, the petitioner who was working in Jabalpur for the purposes of livelihood came back then he was informed that his land has already been auctioned. Then immediately petitioner moved an application to the Collector, Banda, who rejected the said application on the ground that according to the procedure under Rule 285-I of the Zamindari Abolition and Land Reforms Rules, 1952, it provides for filing an objection the Commissioner. Therefore, the application filed the Collector is not maintainable and it is open to the petitioner to approach the Commissioner. Then he immediately filed an objection under Rule 285-I of the aforesaid Rules the Commissioner, Jhansi Division, Jhansi. The said objection was accompanied with an application under Section 5 of the Limitation Act stating all the relevant facts that the petitioner has got no knowledge and no notice was ever served to the petitioner the auction of the property of the petitioner and one day some amount was taken by the Collection Amin and the same was deposited. The respondent No. 4 vide its order dated 4. 12. 1989, rejected the objection of the petitioner on the ground that objection of the petitioner was filed beyond time, holding therein that in the eye of law the objection under Section 285-I provides that objection has to be filed within a period of 30 days and admittedly, the same has been filed after a lapse of 30 days. Rule 285-I is being reproduced below: "285-I. (i) 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. " It has been submitted by the learned Counsel for the petitioner that abservations and findings to this effect recorded by the respondent No. 4 is not sustainable in law as it is well settled that Section 5 of Limitation Act is applicable in respect of Zamindari Abolition and Land Reforms Act and Rules and there is no prohibition to this effect, therefore, the judgment and order passed by the respondent No. 4 is liable to be quashed. The petitioner requested the Commissioner that petitioner is ready to deposit the due amount against the petitioner in toto but the respondent No. 4 has not accepted the request of the petitioner. The valuable properties of the petitioner to the tune of Rs. 50. 000 has been auctioned in a meagre amount of Rs. 20. 000. The period of 30 days will be applicable as provided under the Rules only in a case were auction has taken place after due notice. Petitioner submits that auction proceedings has been illegally confirmed only on the basis of affidavit submitted by the purchaser for complying the procedure given under Rule 154 of U. P. Z. A. and L. R. Rules. 1952.
(3.) THE writ petition was filed this Court on 16. 3. 1990 and interim order was passed on 29. 3. 1990 directing the petitioner to deposit Rs. 19,000 within a period of 2 months. In compliance with the aforesaid order, the petitioner has deposited the amount on 26. 4. 1990 with Tehsil Authority. THE said amount is stilllying with the respondents On the wrong legal advice the petitioner has filed a suit but the suit was dismissed and subsequently the appeal filed thereof was also dismissed. The further submission has been made by the learned Counsel for the petitioner is that as required under the Rules, the auction proceeding has to be confirmed by the competent authority i. e. Collector but the same has not been confirmed by the Collector, which is apparent from Annexure 2 to the writ petition as the same has been alleged to have been confirmed by order dated 23. 2. 1988 by the Sub Divisional Magistrate. Under the Rules, the Sub Divisional Magistrate has got no authority to confirm the auction. In Mohd Yamin and others v. Commissioner, Meerut Division , Meerut and others, 1993 RD 62. This Court taking a view that there is no authorisation by the State by any notification in the gazette to conduct the auction sale and for the purposes of confirmation. In spite of the sale has been confirmed, the Commissioner has got full authority to set aside the same on that ground. In Smf. Shanti Devi v. State of U. P. andothers, JT 1997 (8) SC 191, the Apex Court while considering the Rules 285-H, 285-I, 285-J and Order 21, Rules 89 and 90 CPC has held that confirmation of auction sale of the property under Section 11-Aof the U. P. Agricultural Credit Act, 1973 under Rule 285-J, it is statutory duty of the Collector to keep Section 154 in the mind at the stage of confirmation. The Assistant Collector in confirming the sale is not having the jurisdiction. The Apex Court has further held "it is clear that statutory duty is cast on the Collector to keep Section 154 in mind at the stage of confirmation of sale. 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". The Apex Court has further held that even if the appellant's application the Commissioner is to be treated cc not maintainable, it is open to the appellant to challenge the order of confirmation on the ground of violation of the requirement of Section 154.;