- (1.) Heard Sri Prabhat Kumar Srivastava learned counsel for the petitioner who is seeking an adjournment today after his attention was invited to the findings recorded in the impugned order passed by the Collector. We are not inclined to grant any adjournment because of the fact that this is a dispute which is almost 38 years old and it has now reached this Court finally with the order passed by the Collector pursuant to the directions of the High Court.
(2.) This dispute was being earlier contested individually and only by late Murari Lal, the father and husband of the petitioner nos. 1, 2, 3 and 4 respectively. They are the heirs of late Murari Lal who was the auction purchaser of the property in question that was owned by the grand father of the respondent nos. 6 and 7. Learned counsel for the State-respondent nos. 1 to 4 has produced the original records. A counter affidavit has been filed on behalf of the respondent nos. 6 and 7 which is on record. It is to be noted that the affidavit in support of this writ petition has not been filed by any of the petitioners but by Nain Singh.
(3.) The background in which this petition was instituted is now evident from the facts already brought on record and the entire history has been indicated in the judgment dated 22nd December, 2010 in Writ Petition No. 41346 of 2003, copy whereof has been filed as Annexure No. 2 to the writ petition. We are extracting the said judgment in order to avoid repetition of facts. "Heard learned counsel for the petitioner, Shri R.B. Sahai for the respondent Bank, learned Standing counsel for State respondents and Shri Sunil Kumar for the private respondents. This petition is directed against an order dated 4.8.2003 whereby the Sub Divisional Magistrate has rejected the bid of the petitioner. Brief facts are that Shri Ram Prakash Tayagi, grand father of respondent nos. 4 and 5 took an agricultural loan of Rs. 42,500/- from the respondent Bank in 1975. He did not deposit the instalments despite repeated reminders and therefore, a recovery certificate was issued on 28.3.1977. It appears that certain electricity charges were also outstanding and thus recovery citation was issued for Rs. 59,113.17/- plus interest and collection charges and for electricity dues for Rs. 8685.41/- plus interest and collection charges. As the predecessor in interest of respondent nos. 4 and 5 did not deposit the amount, a piece of land was attached on 20.11.1980 whereafter it was auctioned on 21.1.1981 where the petitioner was the highest bidder and he deposited the entire amount on 2.2.1981. The predecessor in interest of respondent nos. 4 and 5 preferred a Civil Suit No. 23 of 1981 before Munsif Khurja which was dismissed on 4.2.1981 as it was not maintainable. He challenged it through an Appeal No. 18 of 1981 which was dismissed against which Writ Petition No. 17223 of 1988 was filed which also came to be dismissed on 12.3.2001. All this while neither any orders were passed confirming or cancelling the bid nor any application under Rule 285(H) or 285(I) of the U.P. Zamindari Abolition & Land Reforms Act (hereinafter referred to as the Rule) was filed before the Commissioner. After dismissal by this Court, the bid has been rejected by the Sub Divisional Magistrate by the impugned order stating that about 20 years have elapsed and values have gone up and therefore, the auction was cancelled. Learned counsel for the petitioner has urged that since neither any application under Rule 285(H) or 285(I) was preferred by the debtor, the Collector was bound to pass an order confirming the sale under Rule 285(j). In the alternative he has urged that the Sub Divisional Magistrate did not have any power to cancel the bid. It is admitted to the respondents that no application either under Rule 285(H) or 285(I) was filed. It is also not denied that the entire money had been deposited by the petitioner well within time. It is apparent from the facts that petitioner cannot be blamed in any manner for the delay in consideration of the bid and if anyone could be blamed it was the judgment debtor himself or the Collector. In the counter affidavit filed by the State, it is stated that during the pendency of the proceedings lodged by the judgment debtor the value of the land has increased manifold and therefore, the bid was cancelled. A Division Bench of this Court in the case of Ram Awadh Tiwari Vs. Sudarshan Tiwari and others, 2008 6 ADJ 776 has held that the Sub Divisional Magistrate/Sub Divisional Officer has no jurisdiction to approve sale under the U.P. Zamindari Abolition & Land Reforms Act as the power is vested with the Collector but there is nothing on record that the Collector even applied his mind to the present case. However, learned counsel for the respondent contends that since the Collector is not impleaded as a party, no relief can be granted to the petitioner and the petition has to be dismissed for non rejoinder. From the pleadings, it is apparent that the challenge is to the order passed by the Sub Divisional Magistrate who has been impleaded as a party. The Court can take judicial notice of this fact that it is the Collector who has to consider the bid and the Court is entitled to mould the relief and refer the matter to the Collector. However, since the private respondents or his predecessors never filed any application challenging the auction proceedings, It is very doubtful whether they are entitled to any hearing. For the reasons above, this petition succeeds and is allowed and the impugned order dated 4.8.2003 is hereby quashed. The entire file be placed before the Collector to consider again the grant of approval to the auction sale in accordance to law after hearing the petitioner. In the circumstances of the case, no order as to costs.";