BALIA, J. - (1.) THIS case has a very chequered history.
(2.) IT concerned recovery proceedings commenced somewhere in 1965 against respondent No. 4 Dau Dayal Mohta by the Mining Engineer of the State of Rajasthan. In response to Notification dated 29. 03. 1950 by submitting a tender for grant of mining rights in respect of mica in Udaipur and Bhilwara districts said Dau Dayal had submitted his tenders. In the said proceedings, respondent No. 4 was put in possession of Block No. 3 in part `a' as a result of sanctioning of the mining lease in favour of the applicant on terms contained in the order of sanction. Thereafter, he had submitted another application for grant of mining lease for an area 3 square miles on 4. 6. 52 which was allowed vide communication dated 10. 9. 57. In respect of demand on account of royalty payable under the two grants, some dispute was there about the liability to pay dead rent under the first grant. This led to filing of a writ petition No. 1197 of 1983 for the following reliefs: (1) an appropriate writ, direction or order be issued restraining the respondents from recovering the amount of the dead rent from the petitioner in respect of Block No. 3 of the mining area covered by Notification dated 6. 2. 51. (2) the respondents be restrained from proceeding against the petitioner's immovable property at Bikaner for the recovery of the said dead rent under the provisions of the Rajasthan Land Revenue Act, 1956. This petition came to be allowed on 4. 11. 1993 holding that the existing demand against the said Dau Dayal cannot be sustained. The respondents in the said petition were restrained from claiming the amount as due against Dau Dayal (petitioner in the aforesaid writ petition) in respect of Block No. 3 Part `a' in mica mineral track at Bhilwara as arrears of dead rent or other accounts in pursuance of demand dated August 4, 1965. However, it was left open to the competent authority to re-determine the amount that was payable by the petitioner to the department in accordance with law keeping in view the observations made in that judgment. That judgment, it is informed by learned counsel for the parties, was appealed against by the State and made subject matter of Special Appeal No. 657 of 1996 which was dismissed on 5. 3. 1997. Update, in this regard has been placed on record by the learned counsel for the petitioner vide his application dated 15. 12. 98 by placing on record the communication from the Mining Engineer, Bhilwara to Mining Engineer, Bikaner that in pursuance of decision of this Court in Writ Petition No. 1197/83 dated 4. 11. 93. On 13. 8. 98, a fresh demand for Rs. 96,448 has been raised. Since under the amnesty scheme dated 31. 03. 1996 on deposit of the amount within time after raising of the demand interest is to be waived, the entire amount has been deposited on 25. 5. 98 and there is no due against the said respondent No. 4 Dau Dayal now. He also informed to withdraw attachment against said Dau Dayal. These facts are not in dispute that since 4. 11. 93 until raising of the demand dated 13. 8. 98, no executable demand existed against the said Dau Dayal which could be subjected to recovery proceedings at all and that after 13. 8. 98 when the demand was raised afresh, he has been fully met within time and no amount is outstanding in respect of the aforesaid mining grants, recovery of which could be made against properties of Dau Dayal. The other facet of the dispute which is relevant for the present purposes is that in pursuance of demand raised in 1965 recovery proceedings have been commenced against the allottee of aforesaid mining grant, respondent No. 4 by attaching one property situated in Bikaner which is referred to as house in question. On the attachment of the said house by the recovery officer, an objection has been raised before the SDO, Bikaner on behalf of the present petitioner and others that since the said Dau Dayal against whom the demand has been raised (hereinafter referred to as `the debtor') had only 1/3 share in the house in question, entire house is not liable to be attached and sold in recovering the amount due from the said debtor by the Mining Department. That objection was upheld by the Sub-Divisional Officer, Bikaner by his order dated 14. 4. 72 (Ex. 2) that only 1/3 share of the debtor in the house in question is liable to recovery proceedings for which necessary proceedings may be taken. Vide Annx. 3 dated 30. 03. 1987, the Mining Engineer (Recovery) noticing the decision given by the SDO, Bikaner, referred to above, ordered for continue with the proceedings of recovery against Dau Dayal from the 1/3 share of Dau Dayal in the house in question by transferring Dau Dayal's share to State Govt. However, the sale proclamation has been issued putting the entire property in question, without specifying that it is only against 1/3 share of Dau Dayal Mohta, for auction of the property in question on 29. 10. 90 in which the highest bid was given by Shri Basant Kumar Daga, the respondent No. 5. Objection was filed on 30th Nov. , 1990 before the Assistant Mining Engineer (Recovery) drawing his attention to the earlier proceedings and pointing out that the debtor has only 1/3 share in the property in question and the balance 2/3 is held by the objectors, therefore, the full house could not be put to auction for effecting recovery against the debtor who had only 1/3 share in the house. This objection found favour with the recovery officer and he by his order dated 15. 1. 91 upheld the objection and set aside the auction proceedings and directed for issuing fresh proclamation in respect of only 1/3 share of the debtor in the attached property. He was also of the view that the maximum offer is much below the fair price of the auction property. This order dated 15. 1. 91 passed by recovery officer was challenged by Basant Kumar, auction purchaser, before the Board of Revenue, by way of revision. However, he did not implead the petitioners-objectors named in the order dated 15. 1. 91 in his revision petition. However, it is stated by the learned counsel for the respondents that during the pendency of the said revision the objectors, including the present petitioners moved an application under Order 1 Rule 10 CPC for being impleaded as party respondents which was allowed and they were ultimately made party to that petition. However, the name of present petitioners Mahendra Kumar and Gopi Krishna do not find mention in the order of the Board. Be that as it may, the said revision by the Board of Revenue came to be allowed on 3. 9. 93 accepting the contention raised by the petitioner before it that no notice was given to him before setting aside the auction proceedings. The Board also found that for mere irregularities a sale, which has been conducted, cannot be set aside. However, from the perusal of the order, it is apparent from the perusal of the two orders viz. passed by the recovery officer and the Board that the Board has not taken notice of the principal ground on which the order dated 15. 1. 91 has been passed namely that the debtor dated 15. 1. 91 has been passed namely that the debtor had only 1/3 share in the property attached and auctioned and the property of other share holders could not be sold in the execution proceedings for the recovery against debtor and sent the case back to proceed further in accordance with law. After remand, a copy of the order passed by this Court on 4. 11. 93 in Writ Petition No. 1197/83 quashing the demand against debtor Dau Dayal was placed before the recovery officer vide Annx. 11 on 14. 12. 93 pointing out that since no demand is in existence which could be recovered as on that date, sale may not be confirmed, and recovery proceedings may be dropped and attachment be withdrawn. However, inspite of that, without taking notice of the fact that no demand was there for the recovery of which the recovery proceedings could be sustained, the sale was confirmed on 24. 12. 1993 by the recovery officer directing the auction purchaser to be put in possession. When the petitioner were sought to be dispossessed in pursuance of the confirmation of sale, the present writ petition was filed by the petitioners-objectors challenging the order of the Board of Revenue.
(3.) THE aforesaid facts, which are matter of record, are also not in dispute. It has been contended that the Board has apparently erred and passed the impugned order of the Board dated 3. 9. 93 without application of mind and ignoring the principal reason for the order passed by recovery officer on 15. 11. 91 viz. the debtor has undeniably only 1/3 share in the property in question which alone could be subjected to attachment and sale as per orders made in those very proceedings as far as back as on 14. 4. 72 by the SDM, which was not challenged at any stage and that also reflected in the order of AMC (Recovery) made on 20. 3. 87 in furtherance of which sale proclamation was issued, erroneously without confining the proclamation to 1/3rd share of Dau Dayal in the house. This was not mere an irregularity but was a case of substantial error resulting in failure of substantive justice by subjecting the property of persons other than debtor to recovery proceedings. Learned counsel for the petitioner had also contended that after 4th Nov. , 1993 at no point of time there was any demand outstanding against Dau Dayal, respondent No. 4 which could be subjected to the execution proceedings afresh in continuation of pending execution proceedings inasmuch as the demand for the recovery of which those proceedings had been instituted itself has been set aside and there was nothing to be recovered through execution. It was not a case of demand having been satisfied which needed recording of a satisfaction by the Executing authority on an application being made under Sec. 246 of the Rajasthan Land Revenue Act nor a case of setting aside a sale due to irregularity in sale proceedings u/s. 247, but of proceeding with a recovery proceeding for a non-existent demand, touching the very validity of it. ;