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Abdul Wahid v. Additional Commissioner (Admn.), Meerut Division, Meerut And Others

Allahabad High Court

May 9, 1989

Judgment

Subsequent
References

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Structured Summary of the Provided Opinion

Factual and Procedural Background

The petitioner borrowed Rs. 18,000/- from Union Bank of India (on 7-8-1973) and Rs. 20,000/- from Punjab National Bank (on 19-5-1971) for purchasing a tractor. After defaulting on repayments, recovery certificates were issued and several parcels of the petitioner's land in villages Tashipur Mustakam, Tashipur Ahatmal, Rajapur Ahatmal and Rajapur Mustakm were attached and auctioned on 21-8-1986. Respondent No. 3 (Karan Singh) was the highest bidder. On 25-8-1986 the Naib Tehsildar recommended that the auction not be approved and that the auction notice be republished. The S.D.O. approved that recommendation by order dated 4-9-1986. Respondent No. 3 appealed to the Additional Commissioner, Meerut, who allowed the appeal on 10-8-1988 by setting aside the S.D.O.'s order and directing confirmation of the auction sale dated 21-8-1986 and delivery of possession to Karan Singh. The present writ petition under Article 226 challenges the Additional Commissioner's order. Counter and rejoinder affidavits were filed, the opposite party No. 3 appeared, and the petition was disposed of finally at the admission stage on the request of counsels.

Legal Issues Presented

Whether the Additional Commissioner had jurisdiction to confirm the auction sale dated 21-8-1986 and set aside the S.D.O.'s order of 4-9-1986.
Whether procedural irregularities alleged by the petitioner (including that the sale was held after the expiry of 30 days from the proclamation and breach of R. 281(2)(i)) vitiated the sale and rendered it void.
Whether the petitioner's failure to make applications under R. 285-I / R. 285-H (and to deposit amounts required under R. 285-H) or to raise objections at the auction barred him from challenging the sale in writ proceedings.
Whether rules R. 285-H, R. 285-I, R. 285-J and R. 285-K (and related statutory provisions) governed the petitioner’s remedies and barred the challenge made before the High Court under Article 226.

Arguments of the Parties

Petitioner's Arguments

The Additional Commissioner had no jurisdiction to pass an order confirming the sale; the auction sale was not in accordance with law.
The petitioner should not be debarred from raising objections in the writ petition merely because he failed to make objections under R. 285-I and R. 285-H of the U.P. Z.A. & L.R. Rules.
The S.D.O. set aside the sale after the Tehsildar's recommendation before the expiry of thirty days, and it was alleged that the Additional Commissioner could not set aside the S.D.O.'s order dated 4-9-1986.
Main attack: material irregularity because the sale was held after the expiry of thirty days from the date of the proclamation (alleged breach of R. 281(2)(i)), thereby vitiating the sale.
Reliance on cases: Ram Chandra Arya v. Man Singh (AIR 1968 SC 954) (to argue voidness of sale in particular circumstances), Ashok Kumar Singh v. State of U.P (1979 All LJ 203) (to contend mortgaged property should have been auctioned first), and Ram Singh v. State of U.P (1987 Rev Dec 203 / 1987 All LJ 1257).

Respondent's Arguments

The respondent relied on the decision in Indu Engineering and Textiles Ltd. v. Commissioner, Agra Division, Agra (AIR 1984 All 334: 1984 Rev Dec 299) which interprets R. 285-J and related rules: that on expiration of thirty days, if no application under R. 285-H or R. 285-I has been made, the Commissioner shall confirm the sale after satisfying himself about contravention of S. 154; the thirty-day period is a fixed time schedule and Section 5 of the Limitation Act does not apply to proceedings under R. 285-I; and the Commissioner acts as an administrative (quasi-judicial) revenue officer.
Implicit respondent position in the opinion: the petitioner did not avail statutory remedies under R. 285-H / R. 285-I (including deposits required by R. 285-H), no written or oral objection was made at the auction, and certain rules (notably R. 285-K and R. 285-J) bar or limit the petitioner's available remedies and require routine confirmation of sale by the Collector/Commissioner in the absence of proper applications.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Muni Lal v. Prescribed Authority ((1977) 3 SCC 336 : AIR 1978 SC 29)	Authority on the scope of jurisdiction and on limits of High Court's writ jurisdiction under Art. 226 (court is not sitting as a court of appeal).	Relied upon to support the proposition that detailed factual re-examination required by petitioner is beyond the scope of Article 226 and that the High Court should not re-appreciate facts as an appellate forum.
Beant Singh v. Union of India ((1977) 1 SCC 220 : AIR 1977 SC 388)	Authority cited alongside other Supreme Court decisions about limits of revisional/reappraisal jurisdiction under Art. 226.	Placed reliance to emphasize that the High Court exercising writ jurisdiction is not to act as a court of appeal and cannot reexamine intricate factual matters.
S.M. Umarsaheb v. K.H. Karimsab ((1969) 1 SCC 741 : AIR 1970 SC 61)	Another Supreme Court authority concerning limits of reappraisal of facts and the nature of the jurisdiction exercised under Art. 226.	Relied upon together with other Supreme Court decisions to underline the limited scope of factual examination in writ proceedings.
Ram Chandra Arya v. Man Singh (AIR 1968 SC 954)	Principle that a decree passed against a minor without appointment of guardian is a nullity and that a sale in execution of such a decree is void.	The court explained the principle and held it to be inapplicable to the present facts because the present matter is governed by the statutory rules (R. 285-H, R. 285-I) rather than the circumstances in Ram Chandra Arya.
Ashok Kumar Singh v. State of U.P (1979 All LJ 203)	Decision construed to mean that where a loan is secured by mortgage, S. 4(2)(b) of the U.P. Public Money Recoveries Act, 1972 requires the mortgaged property to be sold first in recovery proceedings.	The court held this decision inapplicable: S.4(2)(b) of the U.P. Public Money Recoveries Act is a specific provision for that Act and has no parallel in the rules under the U.P. Z.A. & L.R. Act, so the case does not apply to the facts here.
Ram Singh v. State of U.P (1987 Rev Dec 203 : 1987 All LJ 1257)	Case concerning initiation of proceedings under S. 122-B based on a report of Lekhpal and whether proceedings could be initiated when petitioner asserted non-possession.	The court found this authority wholly irrelevant to the issues in the present case and did not apply it.
Indu Engineering and Textiles Ltd. v. Commissioner, Agra Division, Agra (AIR 1984 All 334 : 1984 Rev Dec 299)	Construction of R. 285-J and related rules: on expiry of 30 days, in the absence of applications under R. 285-H/R. 285-I, Commissioner/Collector must confirm the sale after ensuring compliance with S.154; the 30-day period is a fixed schedule and Section 5 Limitation Act does not apply; Commissioner acts as an administrative/quasi-judicial revenue officer.	The respondent relied on this decision; the court treated the decision as directly against the petitioner and used it to support the conclusion that the statutory scheme bars the petitioner's challenge in the present writ proceedings.

Court's Reasoning and Analysis

The court examined the statutory scheme in the U.P. Z.A. & L.R. Rules that govern setting aside and confirmation of revenue auctions, focusing on R. 285-I (appears as R. 2851 in the text), R. 285-H, R. 285-K and R. 285-J. The analysis proceeded as follows:

The court first noted the textual content of R. 285-I (quoted in the opinion) which permits an application to the Commissioner within thirty days from the date of sale to set aside a sale on the ground of material irregularity or mistake, but only if the applicant can satisfy the Commissioner that he sustained substantial injury by reason of such irregularity or mistake.
The court observed factually that the sale occurred on 21-8-1986, the petitioner's son participated in the auction, the Naib Tehsildar conducted the auction and, in the absence of objection, the deposit of one-fourth of the auction money by the highest bidder and acceptance of the balance were duly recorded. The petitioner did not file any objection under R. 285-I / R. 285-H nor raise any oral objection at the auction.
Turning to R. 285-H, the court noted that this rule provides for an alternative remedy (within thirty days) to have a sale set aside upon depositing specified sums (including 5% of the purchase money and the arrear amount specified in the proclamation, less payments since the proclamation) and that if a person applies under R. 285-I he shall not be entitled to make an application under R. 285-H. The court emphasized that the petitioner did not exercise the option under R. 285-H either.
The court held that the petitioner's failure to invoke these statutory remedies (including the deposit obligation under R. 285-H) and his inaction therefore debarred him from raising the challenge for the first time in the writ petition.
The court examined R. 285-K which states that if no application under Rule-I is made within the allowed time, all claims on the ground of irregularity or mistake are barred (subject to exception for fraud via civil suit). The court described this rule as delivering "a fatal blow" to the petitioner's case.
The court then explained R. 285-J which mandates that on expiration of thirty days after sale, if no application under R. 285-H or R. 285-I has been made (or if such applications were made and rejected), the Collector shall pass an order confirming the sale after ensuring the purchase is not in contravention of S.154; every order under this rule is final. The court interpreted that in the absence of objections under R. 285-H / R. 285-I, the Collector's duty is largely routine, limited to checking for prohibition under S.154.
The court found that there was no material irregularity on record that would justify the Tehsildar making a suo motu report; there was neither written nor oral objection. Consequently, the S.D.O.'s order accepting the Tehsildar's recommendation for a fresh auction was without jurisdiction.
The court relied on authority (Indu Engineering) to the effect that the thirty-day period under the rules is a fixed time schedule and that the Commissioner acts as an administrative/quasi-judicial revenue officer in such proceedings; Section 5 of the Limitation Act does not apply to proceedings under R. 285-I. The court treated that authority as directly adverse to the petitioner's position.
The court also considered and rejected the petitioner's reliance on Ram Chandra Arya (decree against a minor without guardian is nullity) as inapplicable because the statutory scheme in the present case is controlled by the cited rules.
On these bases, the court concluded that the Additional Commissioner’s order confirming the sale did not suffer from error apparent on the face of the record. The court also held that matters requiring detailed fact-finding fell beyond the scope of Article 226, citing Supreme Court authorities to underline that the High Court is not an appellate court in such proceedings.

Holding and Implications

Holding: The writ petition is DISMISSED. The court upheld the order of the Additional Commissioner confirming the auction sale dated 21-8-1986 and directing delivery of possession to respondent No. 3.

Implications:

The direct effect is that the Additional Commissioner's order stands and the confirmation of the auction sale remains effective; the petitioner's challenge in these writ proceedings fails.
The court emphasised that statutory remedies under the U.P. Z.A. & L.R. Rules (R. 285-I, R. 285-H, R. 285-K and R. 285-J) were available to the petitioner and that his failure to invoke them (including deposits required by R. 285-H and timely applications) barred his challenge under Article 226.
No broader legal precedent is purportedly created by this opinion beyond the application of the statutory rules and the cited authorities; the opinion does not proclaim a novel legal principle but enforces the existing statutory scheme and prior authorities on the limited scope of writ review in such revenue matters.

Final Disposition: Petition dismissed.

Show all summary ...

1. The present petition is directed against an order of Additional Commissioner of Meerut Division, Meerut dated 10-8-1988 whereby he has set aside the order of learned S.D.O and has, directed to confirm the auction sale dated 21-8-1986 and to deliver the possession of the land to Karan Singh (respondent No. 3).

2. The opposite party No. 3 has put in appearance. Counter and rejoinder affidavits have been exchanged. On the request of the learned counsel for both the parties, the petition is being disposed of finally at the admission stage. The brief facts are given below:

3. The petitioner took a loan of Rs. 18,000/- from the Union Bank of India and Rs. 20,000/- from the Punjab National Bank on 7-8-1973 and 19-5-1971 respectively for purchasing a Tractor.

4. The petitioner committed default in repayment of loan. Both the banks issued recovery certificates. In pursuance of that, the lands belonging to the petitioner situated in village Tashipur Mustakam, Tashipur Ahatmal, Rajapur Ahatmal and Rajapur Mustakm were attached and ultimately put to auction on 21-8-86. The respondent No. 3 was the highest bidder.

5. On 25-8-1986 Naib Tehsildar recommended that the auction sale held on 21-8-1986 may not be approved and the auction notice be published again.

6. The S.D.O by means of his order dated 4-9-1986 approved the said recommendation. Against this order, the respondent 3 filed an appeal before the Additional Commissioner, Meerut which was allowed on 10-8-1988. The present writ petition is directed against this order.

7. The contention of the learned counsel for the petitioner is that the Additional Commissioner has no jurisdiction to pass an order for confirming the sale. The auction sale was not in accordance to law. According to him, even if the petitioner failed to the any objection under R. 2851 and 285H of U.P.Z.A and L.R Rules (hereinafter referred to as the rules) will not debar the petitioner from raising this point in the writ petition. His contention further was that the S.D.O himself has not accepted the sale dated 21-8-86 and has set aside the same after recommendation of Tehsildar, before expiry of 30 days. It was not open to the Addl. Commissioner to set aside the order of S.D.O dated 4-9-86.

8. The main attack of the learned counsel for the petitioner was that there was material irregularity in publishing and conducting the sale inasmuch as, it was held after the expiry of 30 days from the date, the proclamation was issued. According to him, there was complete breach of R. 281(2)(i) which vitiated the sale.

9. In order to consider the worth of the argument, we will have to look into the relevant rules. R. 2851 reads as under:

“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 reasons of such irregularity or mistake.”

10. There is no dispute that the sale took place on 21-8-86 and the son of the petitioner also participated in the said auction. It was conducted by Naib Tehsildar in accordance with law. In the absence of any objection, the deposit of one fourth of auction money by the highest bidder and the balance has also been accepted by the authorities.

11. Thus under R. 2851, the petitioner could have moved the application before the Commissioner for setting aside the sale on the ground of material irregularity or mistake in publishing or conducting the sate. He had an additional responsibility of satisfying the commissioner that he has sustained substantial injury by reasons of irregularity of administration. The petitioner did not file any objection as contemplated under this rule. Not even an oral objection was raised at the time of auction.

12. This leads us to examine R. 285-H which provides as under:—

“(1) Any person whose holding or other immoveable property has been sold under the Act, may at any time within thirty days from the date of sale, apply to have the sale set aside on his depositing in the Collector's office.

(a) for payment to the purchaser, a sum equal to 5 per cent of the purchase money; and

(b) for payment on account of the arrear, the amount specified in the proclamation in Z.A Form-74 as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been paid on that account and

13. On making of such deposit, the Collector shall pass an order setting aside the sale.

Provided that if a person applies under R. 285-1 to set aside such sale, he shall not be entitled to make an application under this rule.”

14. If the petitioner was aggrieved, then he should have filed application for setting aside the sale after depositing 5 per cent of the purchase money along with other deposits as contemplated in the rule. Even this option was not exercised by the petitioner. Inaction on the part of the petitioner to do so debars him from raising this point in the writ petition for the first time.

15. There was no material irregularity on record on the basis of which, the Tehsildar could make suo motu report against the said auction. Neither, there was any objection in writing, nor there was any oral objection. The order of S.D.O accepting the recommendation of Tehsildar for fresh auction sale was also without jurisdiction.

16. The points which have been raised by the learned counsel for the petitioner all need examination of facts which is beyond the scope of Art. 226 of the Constitution of India. This court while exercising this jurisdiction, is not sitting as a court of appeal. Reliance may be placed on (1977) 3 SCC 336 : AIR 1978 SC 29 Muni Lal v. Prescribed Authority, (1977) 1 SCC 220 : AIR 1977 SC 388 Beant Singh v. Union of India and (1969) 1 SCC 741 : AIR 1970 SC 61 S.M Umarsaheb v. K.H Karimsab.

17. The case relied upon by the learned counsel for the petitioner is reported in AIR 1968 SC 954 Ram Chandra Arya v. Man Singh. In that case, it has been held (at p. 955 of AIR):

“It is now well settled principle that, if a decree is passed against a minor without appointment of guardian, the decree is a nullity and is void and not merely voidable. This principle becomes applicable to the case of a lunatic in view of R. 15 of O. 32 of the Code of Civil Procedure so that the decree obtained against Ram Lal was a decree which has to be treated as without jurisdiction and void. In these circumstances, the sale held in execution of that decree must also be held to be void.”

18. The controversy in the above case was whether the decree passed against minor without the appointment of guardian was a nullity and whether this principle was applicable to the case of lunatic also or not. It was held that such a decree was without jurisdiction and void. The sale held in execution of such a decree was also held to be void. The principle enunciated in that case has got no relevancy in the present case. Here, the entire procedure is controlled and regulated by Rr. 285-H and 285-I.

19. The learned counsel for the petitioner has relied upon the Division Bench decision reported in 1979 All LJ 203 Ashok Kumar Singh v. State of U.P, wherein it has been held as under:

“In a case where the loan has been secured by mortgage, charge or other encumbrance on immovable property, S. 4(2)(b) mandatorily requires that the mortgaged property is first to be sold in the proceedings for the recovery of sum due from that person as if there is an arrear of land revenue and proceedings to recover the same from other property can be taken only if the Collector certifies that there is no prospect of realising the entire loan by sale of the property secured.”

20. Relying upon this decision, it was contended that the property attached was mortgaged. If the loan was not repaid then, the property so mortgaged should have been put to auction first. If the entire amount was not satisfied only then other property could be auctioned. The argument is misconceived inasmuch as S. 4(2)(b) of the U.P Public Money Recoveries Act, 1972 makes specific provision of sale of mortgaged properties, whereas there is no parallel provision in the rules framed under the U.P.Z.A & L.R Act. This case is not applicable to the facts of the present case.

21. Another case relied upon by the learned counsel for the petitioner is reported in 1987 Rev Dec 203 : (1987 All LJ 1257) Ram Singh v. State of U.P This case is wholly irrelevant and fail to understand for what purpose, the learned counsel for the petitioner has cited this case. In that case, proceedings under S. 122-B were initiated on the report of Lekhpal. The petitioner of that case filed the objection stating that he was not in possession of the disputed land, hence, it was held that no proceedings under S. 122B could be initiated.

22. Now, I come to R. 285-K which provides as under:

“If no application under Rule-I is made within that time allowed thereof, all claims on the ground of irregularity or mistake in publishing or conducting the sale shall be barred:

Provided nothing contained in this rule shall bar the institution of a suit in the Civil Court for the purpose of setting aside a sale on the ground of fraud.”

23. This rule gives a fatal blow to the case of the petitioner.

24. The proper remedy for him was to file a Civil Suit for setting aside the sale in this case. This leads us to R. 285-J which reads as under:

“On the expiration of thirty days from the date of sale, if no such application as is mentioned in R. 285-H or R. 285-I, has been made or if such application has been made and rejected by the Collector or the Commissioner, the Collector shall pass an order confirming the sale after satisfying himself that the purchase of land in question by the bidder would not be in contravention of the provisions of S. 154. Every order passed under this Rule shall be final.”

25. According to this rule, the Collector shall have to pass an order confirming the sale if the purchase by the bidder was not in contravention of S. 154. Thus in the absence of objection under R. 285-H and R. 285-I, the Collector has only to examine about the restriction on the transfer by Bhumidhar as contemplated in S. 154. Thus, in the absence of these only a routine order was to be passed by the Collector confirming the sale. In the instant case, the order of the Collector is in contravention of R. 285-J as well and it becomes bad in law.

26. The learned counsel for the respondent has relied upon a case reported in 1984 Rev Dec 299 : (AIR 1984 All 334) Indu Engineering and Textiles Ltd. v. Commr. Agra Division, Agra in which it has been held (at Pp. 340 and 342 of AIR):

“A sale is confirmed under R. 285-J which provides that on expiration of thirty days from the date of sale if no such application as is mentioned in R. 285-H or R. 285-I has been made or if made is rejected by the Collector or the Commissioner, the Commissioner shall pass an order confirming the sale after satisfying himself that the purchase by the bidder would not be in contravention of the provisions of S. 154, of the U.P Zamindari Abolition and Land Reforms Act and every order passed under this Rule shall be final. The nature of the proceedings, under the provisions aforementioned suggests that the period of thirty days is a fixed time schedule for the filing of an application for the setting aside of the sale; and the provisions of S. 5 of the Limitation Act do not seem to apply to the proceedings under R. 285-I as the Commissioner, does not act as a court under that provision.

The Commissioner in matters relating to realisation of arrears of land revenue acts as Revenue Officer, and not as a revenue court.

The Commissioner in the instant case acted as an administrative authority in a proceeding which was quasi-judicial in nature. Under Art. 226 of the Constitution, the High Court can issue a writ or direction in a proceeding as the one in question.”

27. This case is directly against the petitioner.

28. For the reasons given above, I am of the view that the Tehsildar had no jurisdiction to make any recommendation for setting aside any sale dated 21-8-1986, in the absence of any material on the record nor the S.D.O has got any power to pass order dated 4-9-1987 for a fresh auction. The order of Commissioner suffers from no error apparent on the face of record while confirming the sale. The contention of the learned counsel for the petitioner has no force. The petition is accordingly dismissed.

29. Petition dismissed.