D.S.Bajpai - (1.) THE petitioner, Babu Ram, has filed this writ petition under Article 226 of the Constitution of India praying for quashing the impugned orders dated 19-10-1982 passed by the Board of Revenue U. P. Lucknow contained in Annexure-5 and the order dated 9-4-1981 passed by the Commissioner, Allahabad Division, Allahabad, contained in Annexure-1 to the writ petition.
(2.) THE matter pertains to sale proceedings conducted by the Collector, Kanpur for realisation of an industrial loan of Rs. 13,250/- taken by the opposite party no 6, Smt. Shanti Devi. On default in payment the sale officer proceeded to attach house no. 119/233 situate in Mohalla Omnagar, Darshanpurwa, Kanpur which was entered in the names of Babu Ram and his two brothers. Babu Ram had 1/3rd undivided share in the said house. Ram Charan held the other 1/3rd undivided share in the said house. After attachment a proclamation for sale was issued and it was on 10th April, 1978 that the sale took place. Opposite Parties 4 and 5 were the auction purchasers and they made a deposit of 25 per cent of the auction money then and there. Admittedly the balance 3/4th of the auction money was deposited by the opposite parties 4 and 5 on 26th April, 1978. THE petitioner filed an objection before the Commissioner against confirmation of this sale. THE Commissioner by his order dated 9-4-1981 (Annexure-1) rejected the objection. Smt. Shanti Devi also filed an objection. A revision was also filed by Babu Ram and Ganga Shree, the daughter of Ram Charan, before the Board of Revenue, besides the revision preferred by the petitioner before the Board of Revenue. THE Board of Revenue by its impugned order dated 19-10-1982, contained in Annexure-5, dismissed the revisions. It is against this order that the writ petition has been preferred. I have heard learned counsel for the parties. It has been submitted by the learned counsel for the petitioner that the opposite parties 4 and 5 having failed to deposit the money within 15 days as stipulated under Rule 2S5-E of the U. P. Zamindari Abolition and Land Reforms Rules and in view of this default there was no sale in the eyes of law and the property had only to be resold in the auction proceedings. Rule 285-E of the said Rules reads as under :- "285-E. The full amount of purchase money shall be paid by the purchaser on or before the fifteenth cay from the date of the sale at the district treasury or any sub-treasury and in case of default the deposit, after the expenses of the sale have been defrayed therefrom, shall be forfeited to Government and the property shall be resold and the defaulting purchaser shall forfeit all claim to the property, or to any part of the sum for which it may be subsequently sold." Learned counsel for the opposite parties 4 and 5 on the other hand contended that infact the auction purchasers had gone to the Tehsil and were ready to deposit 3/4th amount with the Sale Officer but since the Naib Nazir was not present the Tehsildar directed him to tender the money on 26th April, 1978 i. e. the following day. Annexure C-5 to the counter affidavit is the true copy of the application filed by the auction purchasers on 25th April, 1978. The application no doubt states that the opposite parties 4 and 5 were ready with the money and were prepared to make deposit but the application further went on to say that since the Naib Nazir was not present the money was not being deposited. The applicant made a prayer to the following effect :- "Atah apse anurodh hai ki yadi aap uchit samjhen to kal ke liye rupaya jama karne ke adesh parit karna ka kasht kare. Bilamb ke liye mera koi bhi uttardayitue nahi hoga." On this application the Tahsildar, it appears, granted the prayer of the opposite parties 4 and 5 directing 3/4th amount of the auction money to be accepted the next day.
(3.) AS a fact it has been disputed that the Naib Nazir was not present on 25th April, 1978. This, however, is a question of fact and cannot be considered in the writ petition. The only question that survives is as to whether under the provisions of Rule 285-E (supra) the Tahsildar had authority to extend the period of deposit beyond 15 days as provided in the rules. It is not contended by the learned counsel for the opposite parties 4 and 5 that Rule 285-E is not mandatory but he submits that since the fault was on the part of the Tahsil authorities the opposite parties 4 and 5 were not to suffer. The Board of Revenue while dismissing the revision has taken a view that the delay in depositing the money could be extended by the Tahsildar in the circumstances of the case. The Board of Revenue has relied on a decision of Nichhattar Singh v. Babu Khan, AIR 1972 Punjab and Haryana 204. In this case the learned Judge of the Punjab and Haryana High Court noticed a decision of their Lordships of the Supreme Court in the case of Manilal Mohanlal Shah v. Sardar Sayed Mohamad, AIR 1954 SC 349 but failed to take notice of the principle of law laid down by their Lordships. The Punjab and Haryana High Court while distinguishing the case of Shahzadi Begum v. Hakim Manohar Lal, AIR 1955 Hyd. 110 did not take into account the Supreme Court decision. The decision of the Punjab and Haryana High Court as such could not in any way affect the decision taken by the Board of Revenue and the Board of Revenue erred in accepting the view taken by the Punjab and Haryana High Court in preference to the law laid down by their Lordships of the Supreme Court. In the case of Manilal Mohanlal Shah (supra) the Court was considering the provisions of Order 21 Rules 84, 85 and 86 of the Code of Civil Procedure which are para materia to the provisions of sale under the U. P. Zamindari Abolition and Land Reforms Rules. The Court held as under :- "Having examined the language of the relevant rules and the judicial decisions bearing upon the subject we are of opinion that the provisions of the rules requiring the deposit of 25 per cent of the purchase money immediately on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon non-compliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a purchaser without depositing 25 per cent of the purchase money in the first instance and the balance within 15 days. When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Non-payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity. The very fact that the court is bound to resell the property in the event of a default shows that the previous proceedings for sale are completely wiped out as if they do not exist in the eye of law. We hold, therefore, that in the circumstances of the present case there was no sale and the purchasers acquired no rights at all." In view of the law laid down by their Lordships of the Supreme Court I am of the opinion that the Board of Revenue erred in dismissing the revision preferred by the petitioner challenging the sale on the ground of the auction purchasers not having deposited 3/4th of the amount of sale money within 15 days. The impugned order passed by the Board of Revenue deserves to be quashed as also the order of the Commissioner, Allahabad Division, Allahabad.;