JUDGMENT V.M. Sahai and R.N. Misra, JJ.
1. By way of this writ petition, the petitioner has prayed for issuance of a writ, order or direction in the nature of certiorari quashing the orders dated 7.2.2004 and 9.2.2004, passed by respondent No. 2, Sub-Divisional Officer, Sikandarpur, Ballia setting aside auction sale. He has further prayed for a writ in the nature of mandamus commanding the respondent No. I to confirm auction sale made in his favour and issue sale certificate along with delivery of possession.
2. We have heard Sri W.H. Khan, Senior Advocate assisted by Sri Gulrej Khan learned Counsel for the petitioner and learned standing counsel for the State. It appears from the record that Sahdeo Prasad, Birendra Prasad, Ram Avtar Prasad, Kishan Prasad and Ganesh Prasad, residents of village Sisodar, Tehsil Sikandarpur, district Ballia, owners of M/s Kisan Cold Storage and Ice Factory took loan from respondent No. 3, the U.P. Finance Corporation, amounting to Rs. 1,71,300/-. They could not repay the loan. The total interest accrued on the principal amount of loan became Rs. 37,33, 570/-. Some other expenses were also included and recovery certificate for realisation of total amount of Rs. 39,96,695. 78 only was issued by the Collector, Ballia. In pursuance of recovery certificate, plot No. 121 area 1.30 acres situate in village Gang Kishore, tehsil Sikandarpur, district Ballia belonging to principal-debtors was put to auction. Admittedly, a boundary wall and some constructions were also there in the land. The sale proclamation was issued repeatedly at so many times as mentioned in para 3 of the writ petition but non turned up to take part in the bid. Ultimately on 6.1.2004, three persons appeared for taking part in the bid and the petitioner was one of them. The other persons were Krishan Kumar and Vijendra Singh. The highest bidder was the petitioner. He offered amount of Rs. 10.15 lacs only for said property. He deposited entire amount of bid. The respondent No. 3 vide letter dated 19.1.2004 informed the Collector, Ballia that he had accepted the bid. The copy of letter is Annexure-8 to the writ petition. However, in the meantime, Suresh Prasad, Shree Ram Chaudhary and Chhotely lal filed objection dated 21.1.2004, 16.11.2004 and 7.1.2004 respectively. The Tehsildar, Sikandarpur scrutinised objections of said persons and submitted report Annexure-7 to the writ petition, on the basis of which, Dy. Collector, Sikandarpur cancelled the sale vide order dated 7.2.2004 which has been challenged in the present writ petition.
3. It may be pointed out here that owner of the property auctioned did not prefer any objection. The Finance Corporation also did not raise any objection, rather approved the auction sale. The three persons named above, who had filed objections were not concerned with the sale. Chhotey Lal mentioned this fact in his objection that he was ready to purchase the property in dispute on the price 50% higher to the price offered by the petitioner. It may also be pointed out here that even after proclamation on 13 times, no one appeared to take part in the bid. In pursuance of last proclamation dated 6.11.2003, the petitioner and two others participated in the bid. The objectors never took any interest in auction proceedings. The Deputy Collector, concerned cancelled the auction sale mainly on two grounds i.e. price offered by the petitioner was low and on the bid sheet, two other bidders namely Krishan Kumar and Vijendra Singh had not put their signatures. As regard signature of other two bidders is concerned, Annexure-5 shows that they had deposited security money amounting to Rs. 25000/- each and put their signatures on the memo of depositing security money. Annexure-4 shows that on the condition for sale issued by Tehsildar Sikandarpur, Ballia also, they had put their signatures. Not only this, they took refund of their earnest money after bid was finalised. It appears that due to mistake of auctioning authority, their signatures could not be obtained on the bid sheet, though it has been mentioned in the writ petition that they had put their signatures on the same. As regard sale price is concerned, the Deputy Collector concerned based his finding on the report of Naib Tehsildar, Sikandarpur, Ballia which is annexure-7. The price of land was assessed on the basis of circle rate fixed by the Collector. In the case of Krishi Utpadan Mandi Samiti Sahaswan, Badaun v. Bipin Kumar and Anr. , the honble Apex Court has held that for determining market value of land, circle rate has not to be applied but comparable sales method is the best acceptable method for such determination". It has also been made in the writ petition that Naib Tehsildar concerned in citing circle rate also committed mistake in calculation. The land adjacent to road upto 6 decimal area should have been assessed at Rs. 600/- per sq. meter and further upto 12 decimal area, rate should have been Rs. 450/- per sq. meter and further 25 decimal area, should have been assessed by Rs. 250/- per sq. meter and over 37 decimal, the rate should have been 4.40 lacs per acres. Thus, according to the petitioner, total value comes to Rs. 5.7 lacs only. The Naib Tehsildar concerned himself has assessed value of construction to be Rs. 4 lacs only in his report Annexure-7. Thus, total value comes to Rs. 9.72 lacs only. Learned Counsel for the petitioner has argued that sale price offered by the petitioner amounting to Rs. 10.15 lacs only was higher than that actual value of the property in dispute. This is no method for cancellation of sale that third party after auction proceedings comes to offer more price than the highest bidder.
4. The point of jurisdiction has also been raised by learned Counsel for the petitioner. It has been alleged that Dy. Collector, concerned had no power to cancel the sale. For ready reference, we would like to refer Rule 285(H) and 285(1) of U.P.Z.A and L.R. Rules 1952 as under:
285(H)- (1) Any person whose holding or other immovable 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 Collectors office -
(a) for payment to the purchaser, a some equal to 5 per cent of the purchase money; and
(b) for payment on account of the arrears, 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
(c) costs of the sale.
On the making of such deposit, the Collector shall pass an order setting aside the sale:
provided that if a person applies under Rule 285-1 to set aside such sale he shall not be entitled to make an application under this rule.
285(I)- (i) At any time within thirty days from the date of 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.
(ii) ...
(iii) The order of the Commissioner passed under this rule shall be final.
From Rule 285 (H), it appears that only owner of holding has right to prefer objection within thirty days of auction sale for setting aside sale and the Collector has power to set aside the sale. Further, a plain reading of Rule 285(1) shows that within a period of thirty days from the date of sale, application can be made to the Commissioner to set aside the sale on. the ground of some material irregularity etc. Since under Rule 285(H), owner of holding has been given same right, therefore, it is evident that under Rule 285(1), the objection can be made by any person before the Commissioner. As we have discussed earlier, the objection raised by three persons (supra) regarding sale were preferred by those, who were neither owner of land nor bidder. They were not at all concerned with the property auctioned. Therefore, this argument of learned Counsel for the petitioner is acceptable that third person had right only to prefer objection before the Commissioner concerned and not before the Deputy Collector concerned, who was the Incharge of conducting sale. Learned Counsel for the respondents has argued that Collector has been defined under Section 3(4) of U.P. Z.A. and L.R. Act 1950 as under:
3(4). "Collector", means an officer appointed as Collector under the provisions of the U.P. Land Revenue act, 1901, and includes an Assistant Collector of the first class empowered by the State Government by a notification in the Gazette to discharge all or any of the functions of a Collector under this Act.
5. According to Government Order No. 1/1/76(2)(6)- Rajasva-7 dated 17.1.1976, all Assistant Collectors and Incharge of Tehsildars have been authorised to sanction auction and on this basis, it has been argued that S.D.O./Dy. Collector, Sikdnarpur, Ballia was authorised to set aside the sale, but we do not agree with the interpretation made by learned Counsel for respondents. In the case of Jagat Pal Singh v. State of U.P. 1994 ACJ 608, this Court has clearly held that in view of said notification/government order, the S.D.O./Dy. Collector concerned has been given power only to conduct sale and not to confirm or set aside sale. That power lies only with the Collector concerned and no one else. In the case of Yaqoob v. State of U.P. 2005 (1) AWC 159, this Court has held that under Rule 285(1) of U.P.Z.A. and L.R. Rules, only the Commissioner has power to decide objection. In view of our above discussions, we come to the conclusion that the order, passed by Deputy Collector, Sikandarpur, setting aside sale made in favour of the petitioner is not in accordance with law and we therefore, set it aside. The matter is remanded back to Deputy Collector Sikandarpur, with direction to re-assess market value of the property under sale and refer the matter to the Collector, Ballia for approval or setting aside sale as deem fit under law. With the above directions, the writ petition is disposed of.