Hon'ble Ran Vijai Singh,J.
(Delivered by Hon'ble Ran Vijai Singh, J.) Through this writ petition, the petitioner has prayed for issuing a writ of certiorari, quashing the auction proceedings dated 13.9.2004, auctioning the petitioner's valuable land measuring about 0.650 hectare for an amount of Rs. 1,08,000/- in favour of respondent no. 6.
Heard Sri Kamal Kishore Mishra, learned counsel for the petitioner, learned Standing Counsel and Sri Ashok Kumar Srivastava along with Sri Rahul Sahai, learned counsel for the respondents.
The facts giving rise to this case are that, it appears, the petitioner was sanctioned loan for a sum of Rs. 50,000/- by respondent no. 5, the State Bank of India, in February, 2000 under Prime Minister Rojgar Yojna for running shop of general merchant. In paragraph no. 3 of the writ petition, it is stated that the petitioner was only paid Rs. 25,000/- and remaining Rs. 25,000/- was never given. Since the petitioner could not pay the loan in due time, it appears, the bank has issued a recovery certificate on 4.1.2003 for recovery of Rs. 69,729/- before respondent no. 2, the Collector, Mathura. In paragraph No. 6 of the writ petition, it is stated that without giving any information to the petitioner and without following the provisions of auction, i.e., without munadi and publication, the auction was held and a bid offered by respondent no. 6 for an amount of Rs. 1,08000/- was accepted. It is also stated that the valuation of the land is more than 5 lakhs and the Gram Pradhan has also written a letter for cancellation of the aforesaid auction proceeding on 31.9.2004.
After the aforesaid auction, the petitioner herein, it appears, has filed an application before the Collector, Mathura for depositing the amount of loan in easy instalments and the Collector thereon has directed the Naib Tehsildar to accept Rs. 25,000/- and for remaining amount, some time be granted. Pursuant thereto, the petitioner has deposited Rs. 25,000/- with the bank on 11.10.2004.
Thereafter, the petitioner has filed present writ petition on the ground that the entire proceeding is vitiated on account of non-observance of the procedure contained in U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'the Act') and the Rules framed thereunder for recovery of the government dues as arrears of land revenue. In the said writ petition, on 10.12.2004, a Division Bench of this Court has passed an interim order for not confirming the auction sale. However, it appears, the said writ petition was dismissed for want of prosecution on 17.8.2005 and the then Tehsil authorities have confirmed the sale after dismissal of the writ petition in default on 5.10.2005.
However, subsequently, the writ petition was restored to its original number on 16.11.2005. On 4.4.2007, this Court has stayed the dispossession of the petitioner from the land in dispute and also passed an order that entire action taken by the respondents on account of the dismissal of the writ petition in default is illegal.
Two counter affidavits and one supplementary counter affidavit have been filed; one by the State and remaining two by respondent No. 6, in favour of whom auction was confirmed. In the counter affidavit filed by the State sworn by one Sri Darshan Singh, Tehsildar, Sadar District Mathura, it is stated in paragraph no. 3(1) that there is no record on the file of the auction proceedings with respect to the publication of notice in daily newspapers. In paragraph no. 2 of the same, it is stated that the Naib Tehsildar, on 15.10.2004, has submitted a report stating that the highest bid is of Rs. 1,08,000/-, whereas the valuation of the land is 3,20,000/-, therefore, auction be not confirmed.
In paragraph no. 4, it is stated that after dismissal of the writ petition on 17.8.2005, a proceeding for confirmation of sale was initiated and after getting the reports, the sale was confirmed on 5.10.2005 because of absence of interim order and possession of the land was given to respondent no. 6, Smt. Rajesh Devi. It is also stated that after depositing Rs. 25,000/- on 4.10.2004, the petitioner has not deposited any amount.
In response to the averments made in the writ petition, that procedure relating to the auction of the immovable property, has not been followed, it is stated in paragraph no. 9 of the counter affidavit that there is no paper in the record with respect to Munadi and publication for auction. It is stated in paragraph no. 13 of the counter affidavit that on 2.11.2004, a notice was sent to the petitioner to deposit the remaining amount. In paragraph no. 14 of the counter affidavit, it is stated that citation was issued, but the petitioner has refused to accept the same and that was pasted on the door of the petitioner.
A rejoinder affidavit has been filed in response to the counter affidavit filed by the State-respondents, in which it is stated that the procedure contained in the Act and the Rules relating to auction of the immovable property has not been followed. It is also stated that after deposit of Rs. 25,000/-, the petitioner has tried to deposit the remaining amount, but that was not accepted. In paragraph no. 8 of the rejoinder affidavit, it is stated that the petitioner is still in possession over the land in dispute. It is reiterated in the rejoinder affidavit that without there being any advertisement in newspaper and without fixing the valuation of the land and without munadi, the auction was held against the mandatory provisions contained in the Act. It is also stated in paragraph no. 17 of the rejoinder affidavit that for satisfaction of loan of Rs. 69,729/-, the petitioner's valuable land, worth of Rs. 6 lakhs, has been auctioned for Rs. 1,08,000/-, but out of that excess amount, not even a single penny has been paid to the petitioner.
Although, the respondent no. 6 has not filed any counter affidavit in the writ petition, but he has filed a counter affidavit in the restoration application, wherein it is stated that the petitioner has transferred the land in dispute through registered sale deed dated 21.4.2009 in favour of one Sri Padam Singh. A copy of the sale deed has also been brought on record of the counter affidavit filed in restoration application, from the perusal of which, it transpires that the land in dispute was sold through registered sale deed on the consideration of Rs. 5 lakhs in favour of Sri Padam Singh, on which stamp duty of Rs. 28,150/- has been paid.
Through supplementary affidavit, the respondent no. 6 has brought on record the sale deed of the said property executed in favour of respondent no. 6 on 26.11.2005, for which sale certificate was issued on 14.11.2005. It is also stated that the possession of the land was given to respondent no. 6 on 5.12.2005.
On the record of counter affidavit, an order passed by Sub Divisional Magistrate, Mathura dated 8.4.2011 passed in case no. 5 of 2011, in between State Vs. Rajesh Devi and Others, has been brought on record, from which it transpires that the crop of Laha was given in supardgi of third person, with the direction that after getting it harvested and selling the same on market price, deposit the sale proceed in the Court.
A rejoinder affidavit, in response to the counter affidavit filed by respondent no. 6, has been filed, in which also it is reiterated that without following the procedure contained in the Act and Rules, the auction proceeding has been concluded.
It is contended by Sri Kamal Kishore Mishra, learned counsel for the petitioner that the petitioner belongs to Harizan community and is a very poor person and after mortgaging the entire land which he possessed, i.e., 0.650 hectare, applied for loan of Rs. 50,000/- for opening a Pertune shop with a view to augment his income and out of which, only 25,000/- has been paid and the bank has sent an illegal recovery certificate to the Collector for recovering Rs. 69,729/-. Pursuant thereto, the petitioner's land was auctioned for an amount of Rs. 1,08,000/-, whereas the valuation of the land was more than Rs. 5 lakhs. In his submissions, the relative of respondent no. 6 was collection amin in the Tehsil and he has manipulated the entire auction proceedings. He has further contended that there is a complete mechanism for auction of immovable property, i.e., land given in the Act and the provisions contained therein are mandatory in character, therefore, without taking recourse of the same, if any auction was held, that cannot be sustained in the eye of law. In his submissions, the respondents have not been able to deny the petitioner's specific stand with regard to the holding of auction without there being any munadi and publication, therefore, the same deserves to be quashed.
Refuting the submissions of learned counsel for the petitioner, learned Standing Counsel as well as Sri Ashok Kumar Srivastava along with Sri Rahul Sahaiand respondent no. 6 have submitted that the auction proceeding was conducted in accordance with law and in the event of failure of petitioner in depositing the amount contained in the citation, the auction was confirmed on 5.10.2005. In their submissions, ample opportunity was given to the petitioner to satisfy the loan even after the auction, which took place on 13.9.2004 and thereafter, on 11.10.2004. Petitioner has only deposited Rs. 25, 000/- and thereafter, he did not deposit any amount and on failure, there was no escape, except to auction the mortgaged land.
We have heard learned counsel for the parties and perused the record.
For resolving the controversy in hand, it would be in benefit to peruse the provisions in the Act, the Rules framed there under in the year 1952 known as U.P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as, 'the Rules') and the relevant provisions of the Code of Civil Procedure, 1908, which read as under:
Relevant provisions of the Act.
"279. Procedure for recovery of an arrear of land revenue,-(1) An arrear of land revenue may be recovered by any one or more of the following processes - (a) by serving a writ of demand or a citation to appear on any defaulter, (b) by arrest and detention of his person, (c) by attachment and sale of his movable property including produce. (d) by attachment of the holding in respect of which the arrears is due, (e) (by lease or sale) of the holding in respect of which the arrear is due", (f) by attachment and sale of other immovable property of the defaulter, (and) (g) by appointing a receiver of any property, movable or immovable of the defaulter. (2) The costs of any of the processes mentioned in sub-section (I) shall be added to and be recoverable in the same manner as the arrears of land revenue."
Section 280 of the Act deals with writ of demand and citation to appear. According which, as soon as an arrear of land revenue has become due, a writ of demand may be issued by the tahsildar on the defaulter calling upon him to pay the amount within a time to be specified. Sub section (2) of section 280 of the Act provides that in addition to or in lieu of a writ of demand, the tahsildar may issue a citation against the defaulter to appear and deposit the arrears due on a date to be specified. Further, section 281 provides penal provision for the defaulter, according to which, on failure to deposit the land revenue, the person may be arrested and detained in custody upto a period not exceeding 15 days. This section also provides that no woman or minor shall be liable to arrest or detention. Section 282 of the Act deals with attachment and sale of movable property.
The corresponding rules in this regard, have been made under U.P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as 'the Rules'). The relevant rules, relating thereto, are reproduced hereinunder:
Relevant provisions of the Rules.
"273. Where any land is attached in pursuance of the provisions of clause (d) or (f) of Section 279 or sub-section (1) of Section 284 or of Section 280 or is let out under sub-section (2) of section 284, a proclamation in Z.A. Form 78, shall be affixed at a conspicuous place in the village in which the land is situate, and it shall also be notified by beat of drum.
273-A. The attachment of holding or other immovable property under clause (d) or (f) of section 279 or under section 284 or section 286, shall be effected in the manner prescribed in Order XXI, Rule 54 of the Code of Civil Procedure, 1908 and the order to the defaulter shall be issued in Z.A. Form 73-D.
274. [* * *]
275. [* * *]
276. [* * *]
277. [* * *]
278. As soon as may be, after the holding is attached under sub-section (1) of section 284, the Collector shall proceed to let out the holding to any person other than the defaulter, whom he thinks fit, and who pays the whole of the arrears due on the holding before a lease is given to him in respect of that holding.
279. The lease given by the Collector under section 284 shall be in Z.A. Form 73-C.
280. [* * *] 280-A. When a lease is made under section 284, the Collector shall issue orders for the necessary mutation of names to be made in the registers. No fee shall be levied in respect of any such mutation.
281. Section 284. - (1) Recourse can only be had to the sale of the holding under section 284 when the process specified in clause (a), (b), ( c) or (d) of section 279 would be insufficient for the recovery of the arrear.
(2) Process for sale of holding under section 284 and of other immovable property under section 286 shall be issued by the Collector.
(2-A) In the case of sale of a holding the Collector shall auction the holding in lots of 1.26 hectares 3.125 (acres) to 5.04 hectares (12.50 acres) after working out and announcing the land revenue and the estimated value of each lot.
It should also be made clear that only those persons would bid in the auction, acquisition of land by whom would not contravene the provisions of section 154.
(3) [* * *]
282. The proclamation of sale shall be in Z.A. Form 74.
283. In proclamation for sale under section 286, the Collector shall state the amount of the annual demand and the estimated value of the property calculated in accordance with the rules in Chapter XV of the Revenue Manual.
284. (1) When the land is put up for sale a charge shall be levied on account of the costs of every sale, upon such amount not exceeding the total sum due for recovery as may be realised by the sale at the following rates:
285. Whenever any house or other building situated within the limits of a military cantonment or station is sold, the Collector shall as soon as the sale has been confirmed, forward to the Commanding Officer of such cantonment or station for his information, or for record in the brigade or other proper office, a written notice that such sale has taken place, and such notice shall contain full particulars of the property sold and of the name and address of the purchaser."
Relevant provisions of the Code of Civil Procedure,1908 "54. Attachment of immovable property. (1) Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taken any benefit from such transfer or charge.
(1-A) The order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale.
(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also, when the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate and, where the property is land situate in a village, also in the office of Gram Panchayat, if any, having jurisdiction over that village."
From going through the record of the writ petition, counter affidavits and rejoinder affidavits, following undisputed facts would appear:
(1) There was no publication in any newspaper with respect to the auction in question.
(2) No valuation was fixed of the land auctioned prior to holding of auction.
(3) Ignoring the report of Naib Tehsildar dated 15.10.2004 for cancelling the sale, the sale has been confirmed.
When the writ petition was filed on 10.12.2004, an order was passed restraining the respondents from confirming the sale in question. The writ petition was dismissed in default on 17.8.2005 and restored on 16.11.2005. The sale was confirmed on 5.10.2005.
For appreciating the controversy, it would be necessary to peruse the contents of paragraph 6 of the writ petition and its reply given in paragraph 9 of the counter affidavit filed by the State - respondents, where the averments have been made for non-publication of notice and munadi before proceeding with the auction, which are reproduced hereinunder:
Paragraph No. 6 of the Writ Petition:
"That the land mortgaged has been auctioned in favour of the Respondent no. 6 without giving any information to the petitioner and without following the provisions of the auction of the land. It is also stated that no munadi was made in the village and there was no publication for the auction and the auction was held in favour of the Respondent no. 6 in collusion with Bhawar Singh, who is the husband of the Respondent no. 6 in as much as the auction has been held at low price where as the valuation of the land is more than 5 lakh. The Gram Pradhan of the village has requested for cancellation of the auction by letter dated 21.9.2004. A true copy of the letter dated 21.9.2004 is being filed herewith and marked as Annexure no. 3 to this writ petition."
The reply of paragraph no. 6 of the writ petition has been given in paragraph 9 of the counter affidavit filed by the State, in which following averments have been made:
"9- ;g fd ;kfpdk ds izLrj 6 esa of.kZr dFku ftl izdkj mfYyf[kr fd;k x;k og xyr gS vkSj Lohdkj ugh gSA bl en esa rRdkyhu vf/kdkfj;ksa }kjk fof/kor uhykeh fnukad 13-09-2004 fd;k tkuk Lohdkj gS QnZ uhykeh dh Nk;k izfr bl izfr'kiFki= ds lkFk layXud lh0,0 &3 ds :i esa layXu dh tk jgh ;g xyr fy[kk gS fd uhykeh esa dfFkr rkSj ij tehu dh uhykeh laca/kh izkfo/kkuksa dk vuqlj.k ugh fd;k x;k gksA equknh o izdk'ku foHkkxh; i=koyh esa miyC/k ugh gS ysfdu ;kph dks lwfpr fd;k lwpuk i= fnukad 12-3-2004 dh Nk;k izfr layXud lh0,0 &4 ds :i esa layXu dh tk jgh gSA tgkW rd rRdkyhu xzke iz/kku }kjk i= fnukad 21-09-2004 izLrqr fd;s tkus dk iz'u gS] ,slk dksbZ i= foHkkxh; i=koyh esa izkIr gksuk ugh ik;k tkrkA "
From the perusal of the reply given by the State - respondents, it would appear that the respondents have not come with the clear case that the munadi and publication was made prior to holding the auction. However, what they state is that the record of the munadi and publication is not available on record. There is no denial with respect to the valuation of the land in dispute, which according to the averments made in paragraph no. 6, was five lakhs.
Rule 273 A of the Rules provides that the attachment of holding or other immovable poperty under clause (d) or (f) of section 279 or under section 284 or section 286, shall be effected in the manner prescribed in Order XXI, Rule 54 of the Code of Civil Procedure, 1908 and the order to the defaulter shall be issued in Z.A. Form 73-D. Sub rule (1A) of Rule 54, Order XXI of Civil Procedure Code, 1908 provides that the order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale. The sub-rule (2) of the aforesaid Rule provides that the order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also, when the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate and, where the property is land situate in a village, also in the office of Gram Panchayat, if any, having jurisdiction over that village. Rule 273 of the Rules also provides almost the same thing.
In view of sub-rule (1A) of Rule 54, Order XXI of Civil Procedure Code, 1908, it is incumbent upon the authority holding auction and taking recourse of sale of the land to fix a date for settling the terms of proclamation for sale. Under section 283 of the Act, the Collector shall state the amount of the annual demand and the estimated value of the property calculated in accordance with the rules in Chapter XV of the Revenue Manual. The State - respondent has filed counter affidavit. In the counter affidavit, it has no where been stated that the estimated value of land was calculated in accordance with the Rules and was made known to all before holding the auction. The factum of non-publication of notice and munadi has also not been denied. It may also be noticed that the petitioner himself has sold the land through registered sale deed on the consideration of Rs. 5 lakhs, which, it appears, has latter on been cancelled. The requirement under the Rules for munadi before holding an auction and fixation of the value of the land is the condition precedent and if any auction is held, contravening the statutory provisions of the Rules, that cannot be sustained in the eye of law.
The matter may be examined from another angle also. In view of Rule 281 of the Rules read with section 284 of the Act, it would transpire that recourse can only be had to the sale of holding under section 284 of the Act, when the process specified in Clauses (a), (b), ( c) and (d) of section 279 of the Act would be insufficient for the recovery of the arrears.
Here, from the perusal of the pleadings of the parties, available on record, it transpires that so far as the condition no. (a) of section 279 of the Act is concerned, the service of writ of demand or a citation has been denied. So far as the condition no. (b) is concerned,i.e., the arrest and detention, that is also absent here in this case. So far as the condition no. (c) is concerned, there is no such averment in the counter affidavit that recourse to condition no. (c) has been taken, whereas Rule 281 of the Rules provides that recourse of sale under section 284 can only be taken if the process of Clause (a), (b) and (c) of section 279 would be insufficient. The imposing of these conditions are purposive as the effect of taking recourse of auction of immovable property, i.e., the agricultural land, would mean the deprivation of a person from the land in question for every time, which will not only affect the person concerned, but it will deprive the persons of coming generations. The agricultural land of an agriculturist is the source of their livelihood, therefore, that cannot be taken casually without strict adherence to the provisions contained under the Act and Rules for taking recourse of the sale of the immovable property, i.e., the agricultural land.
Besides that, where a Statute requires to do certain thing in a particular method, then that thing must be done in that very method and other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid legal proposition is based on a legal maxim " Expressio unius est exclusio alterius", meaning thereby that 'if a Statute provides for a thing to be done in a particular manner, then it has to be done in that very manner and other manner and procedure is ordinarily not permissible'. (Vide Taylor Vs. Taylor, (1876) 1 Ch.D. 426; Nazir Ahmed Vs. King Emperor, AIR 1936 PC 253; Deep Chand Vs. State of Rajasthan, AIR 1961 SC 1527; Haresh Dayaram Thakur Vs. State of Maharashtra & Ors., (2000) 6 SCC 179; Dhanajaya Reddy Vs. State of Karnataka etc. etc., (2001) 4 SCC 9; Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala & Ors., (2002) 1 SCC 633).
It is also well settled that if any thing has not been done in the manner provided for under the Statute and the Statute has provided a consequence for non-performance of such act as provided for, then those provisions are mandatory and not directory. While determining whether a provision is mandatory or directory, in addition to the language used therein, the Court has to examine the context in which the provision is used and the purpose behind it to achieve. It may also be necessary to find out the intention of the legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application.
Here in this case, as we have noticed that the required munadi and required valuation of the property before holding auction proceedings have not been done, as required under the Act and Rules and these things go to the root of the matter, therefore, non-observance of that would vitiate the entire sale proceedings as the provisions contained under the Act and Rules relating to the auction of land for arrears of land revenue are mandatory in nature and non-observance of the same would render the proceeding void.
In the case of Union Bank of India Vs. Official Liquidator, 2000 (5) SCC 274, the apex Court has observed as under:
"In auction-sale of the property of the company which is ordered to be wound up, the Company Court acts as a custodian for the interest of the company and its creditors. It is the duty of the Company Court to satisfy itself as to reasonableness of price by disclosing valuation report to secured creditors of the company and other interested persons. It was further held that the Court should exercise judicial discretion to ensure that sale of property should fetch adequate price. For deciding what would be reasonable price, valuation report of an expert is essential. The Company Judge himself must apply his mind to the valuation report. The Court observed that the High Court did not interfere with the auction-sale on the ground of sympathy for the workers which was not proper. The auction-sale was, therefore, set aside by this Court and the Official Liquidator was directed to resell the property after obtaining fresh valuation report and after furnishing copy of such report to secured creditors."
In Divya Manufacturing Company (P) Ltd. and Another Vs. Union of India and Others AIR 2000 SC 2346, the apex Court held that in appropriate cases, even the confirmed sale can be set aside. In Gajraj Jain Vs. State of Bihar and Others (2004) 7 SCC 151, the apex Court held that in absence of valuation report and reserve price, the auction sale becomes only a pretence and if there is no proper mechanism and if the intending purchasers are not able to know the details of the assets or itemised valuation, the auction-sale cannot be said to be in accordance with law. If publicity and maximum participation is to be attained, all bidders must know the details of the assets and the valuation thereof. In S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar 2004 (7) SCC 166, the apex Court held that it is the duty of the authority conducting the sale to ensure the maximum participation of the bidders in turn requires that a fair and practical period of time must be given to purchasers to effectively participate in the sale. Unless the subject matter of sale is of such a nature which requires immediate disposal, an opportunity must be given to possible purchaser who is required to purchase the property on 'as-is-where-is basis' to inspect it and to give a considered offer with the necessary financial support to deposit the earnest money and pay the offered amount, if required. It has also laid emphasis that the proper valuation has to be fixed and the bidder has to be noticed in adequate manner with a view to require their maximum participation.
Here in the present case, no munadi / publication was made, no valuation was fixed as required under Rule 283 of the Rules and without taking recourse as contained in condition nos. (a), (b) and (c) of section 279 of the Act the land has been auctioned on the consideration of Rs. 1,08,000/-, which would go to establish that a valuable land was auctioned by the respondents without taking recourse to procedure as contained under the Act and the Rules, therefore, the entire proceeding of auction is vitiated and the same deserves to be quashed.
In the result, the writ petition succeeds and is allowed. The entire proceedings of recovery is hereby quashed.
The respondent no. 6 shall be entitled to the refund of the auctioned amount alongwith 9% interest, which is to be borne out by the petitioner and be paid within a period of one month from today. However, the petitioner shall also be entitled to get back the excess amount after satisfying the loan out of the auctioned money, if any.
Date of Order: 19.12.2012 Amit Mishra (Ran Vijai Singh,J.) (Ashok Bhushan, J.)