JUDGMENT S.K. Singh, J.
1. These are two connected writ petitions on the same cause of action challenging same impugned orders and therefore, both have been taken up together and are being decided accordingly. Writ Petition No. 4451 of 1986 is being made as leading case. Facts and details as given in both writ petitions are the same and therefore, they are being collectively mentioned.
2. Challenge in both petitions is the auction sale dated 24.3.1979, sale certificate dated 19,2.1980 rejection of petitioner's objection under Rule 285(1) of U.P.Z.A and L. R. Rules (hereinafter referred to as the Rules) by the Commissioner by his order dated 15.12.1979 and dismissal of their revision by the Board of Revenue by order dated 21.11.1985. In support of Writ Petition No. 4450 of 1986, Sri B. D. Mandhyan, learned senior advocate appeared and in opposition, Sri V. B. Upadhyaya, learned senior advocate submitted his arguments. In Writ Petition No. 4451 of 1986, Sri Ravi Kiran Jain, learned senior advocate and in opposition thereof, Sri R. N., Singh,. learned senior advocate has been heard.
3. Issue in the writ petition is the validity and the propriety of auction sale of three houses, i.e., house NOS, 16/20, 16/20B and 16/20C, situated in Civil Lines, Kanpur. There was a registered partnership firm in the name of M/s. Kanpur Twin Manufacturing Company. Recovery certificate dated 2.12.1977 (No. 328) for a sum of Rs. 49,118.73 pertaining to the recovery of Central Sales Tax and another recovery certificate dated 29.12.1977 (No. 341) for a sum of Rs. 23,885.31 pertaining to U. P. Sales Tax was issued in the name of aforesaid firm. Pursuant to the aforesaid recovery certificates, it is claimed that proceedings or attachment and auction of the aforesaid properties took place, in which M/s. Narendra & Company, who happens to be respondent No. 6 in both petitions, became the auction purchaser being highest bidder for an amount of Rs. 1,61,000. The auction sale was confirmed and sale certificates were also issued on 19.2.1980. Against the aforesaid auction sale objections were filed before the Commissioner under Rule 285(1) of the Rules which was rejected, upon which, the petitioner of Writ Petition No. 4450 of 1986 filed revision before the Board of Revenue but the petitioner of Writ Petition No. 4451 of 1986 came to this Court directly by filing writ petition but thereafter, he withdraw the same with the purpose to file revision, upon which, he also filed revision before the Board of Revenue. Both revisions have been dismissed by the Board of Revenue by orders dated 21.11.1985 as not maintainable and thus, both the order of the Board of Revenue and that of the Commissioner and the auction sale are under challenge in both writ petitions.
4. Learned counsel appearing for the parties have been heard at length. As the arguments of learned counsel appearing for both parties in both writ petitions either for petitioners or for the respondents are more or less same and therefore, instead of referring the arguments of both sides separately, arguments as has been advanced in both petitions either for or against, is being summarised.
5. Learned counsel for the petitioner, to challenge the auction proceedings and the impugned orders submits the following grounds :
(i) Demand made by the sales tax authorities was ultimately withdrawn and therefore, no recovery remained and thus the auction sale will become void and will automatically fall through.
(ii) The recovery proceedings as the proclamation reveals was in the name of Jagarnath who was already dead on 24.8.1976 and thus their being no serve on all the heirs of Jagarnath, auction becomes void ab initio.
(iii) The proclamation pursuant to which proceeding has taken is only a notice of proclamation of attachment and there is no proclamation for sale at all and therefore, on this count itself entire auction proceeding is without jurisdiction and unauthorised.
(iv) In the event, all heirs of Jagarnath Bagla would have been served in respect to any notice for sale, they could have appeared and would have prayed for deposit of money or they could have assisted in assessing the valuation of the property which is the subject matter of proceedings.
(v) Description of the property is not at all clear from the proclamation as no details as required under law has been given.
(vi) There is no mention that the property is to be auctioned in one lot or several lots.
(vii) Approximate value was not mentioned in proclamation of attachment so that prospective buyers can form their opinion to participate.
(viii) Property subjected to auction are three different properties having three different assessment, but in the proclamation it is mentioned as house Nos. 16/20 (16/20B and 16/20C) and thus there can be an impression that all the three properties referred above are part and parcel of one property which is to create confusion.
(ix) There was no occasion of auction of all three houses as the amount could have been recovered even by auction of only one or two houses and thus, no effort was made in this respect and straightway, auction of all the three properties was also illegal.
(x) Value of property in view of the tax assessment, authorities at that time happened to be about 11 lacs and according to circle rate about 15 lacs but it has been settled for an amount of 1,61,000.
(xi) Auctioning authorities have not considered the specific objection filed before them that appeal against the assessment order is still pending and its result may be waited and in the event, the amount is to be recovered then it can be recovered by auctioning another set of property, of which details were given in the objection.
In the light of aforesaid facts, argument is that this Court in exercise of the writ jurisdiction, is to quash entire auction proceedings and the impugned orders. Submission is that the alternative remedy is not an absolute bar for grant of relief and therefore, although the Board of Revenue, has not decided the revision on merits, petitioners may not be relegated to approach the revisional court. Submission is that as required, facts are clear from record and counter and rejoinder-affidavit has already been exchanged and the matter is pending since last about 18 years, petitioner is entitled for final decision from this Court. In support of submission that in these circumstances, writ petition is to be finally decided, reliance has been placed on the decision given in the case in L. Hirday Narain v. Income Tax Officer. AIR 1971 SC 33 ; Dr. Bal Krishna Agarwal v. State, 1995 (1) AWC 509 (SC) : 1995 (1) SCC 614 and State of Himachal Pradesh v. Raja Mahendra Pal and Ors., 1999 (2) AWC 2.78 (NOC) : AIR 1999 SC 1786. In support of the submission that when the demand was withdrawn and recovery was knocked of, the auction sale will fall through, reliance has been placed on the decision given in the case of Union of India v. Jardine Henderson Ltd., (1979) 118 ITR 112 (SC). In support of the submission that if the required details are not given in the auction notice, it is vitiated, reliance has been placed on Gajadhar Prasad and Ors. v. Babu Bhakta Ratan and Ors., AIR 1973 SC 2593.
6. In response to the aforesaid, opposition has been made mainly on the following grounds :
(i) Several disputed questions of . facts are to be investigated and therefore, petitioners having effective alternative remedy of getting the same adjudicated from Board of Revenue, no interference is to be made in writ jurisdiction.
(it) Board of Revenue has dismissed the petitioners' revision on the ground of being not maintainable, and therefore, matter is to be relegated to the Board of Revenue for examining the claim of parties on merits by recording finding on question of facts.
(iii) Although the scope of revision is limited but as record of the auction proceedings will be available before the Board of Revenue, propriety of auction proceedings and order of Commissioner can be very well examined by the Board of Revenue and thus this Court should not undertake the job of examination of record for quashing entire proceeding straightway.
(iv) Recovery certificate which is said to have been withdrawn is only in respect to Central Sales Tax amount and not of U. P. Sales Tax amount and therefore, the submission that the demand was knocked of being incorrect, auction proceedings cannot be said to be vitiated.
(v) In any view of the matter, even if recovery has been withdrawn, that being much after auction sale, its confirmation and Issuance of the sale certificates that cannot be set aside on that ground.
(vi) Inadequacy of the price and certain irregularity as has been argued, cannot be a ground for setting aside auction sale unless substantial injury is proved
7. In support of the submission that as various factual aspects are to be investigated and interest of third party is now involved and as no substantial injury is proved, it will be safe to send the matter to the revisional court, reliance has been . placed on the decision in (1999) 9 SCC 276, as given in the case of Ram Maurya v. Kailash Nath and Ors.. In support of submission that although recovery proceeding was knocked off/withdrawn, but as the same happened after entire exercise of auction sale, its confirmation and issuance of sale certificate, auction sale cannot be set aside, reliance has been placed on the decision in the case of Mohan Wahi v. Commissioner of Income Tax and Ors., ITR (Vol. 248) 799. In support of the submission that mere irregularity and less price cannot be ground to set aside auction sale, reliance has been placed on the decision in Kitnwar Bahadur Verma v. Board of Revenue and Ors.. 1974 UPTC 374 ; M/s. Kayjay Industries (P.) Ltd. v, M/s. Asnew Drums (P.) Ltd., AIR 1974 SC 1331 and decision given in the case in Ram Maurya v. Kailash Nath, (1999) 9 SCC 276.
8. In support of the submission that the order of Board of Revenue is to examine the matter in revision, reliance has been placed on the decision given in the case of Ram Swarup v. Board of Revenue, 1990 RD 291.
9. In view of the aforesaid now the matter is to be examined. Some more facts leading to the exercise which is under challenge will be useful to be noticed. As noticed above, for the recovery of amount of Rs. 49,187.73 pertaining to Central Sales Tax, and amount of Rs. 23,885 pertaining to U. P. Sales Tax payable by the firm, recovery proceeded. Ultimately, on appeal filed by the firm matter was remanded to the Sales Tax officer who by the order dated 21.1.1981 set aside the liability of sales tax against the firm and the recovery certificate No. 328 which was issued on 2.12.1977 was withdrawn. In the meantime, In the proceeding for recovery, by sale pf some movable property of Mohan Lal Bagla and others, i.e., two motor cars etc. the amount of Rs. 26,050 was recovered. It is thus clear that recoverable amount against the firm did not remain a big one. It has come before this Court and before the recovery authority also that the firm has sufficient assets including bank accounts in various banks, factory building, machinery etc. worth several lacs but instead of proceeding against those properties of firm, the immovable properties belonging to the petitioners, i.e.. House No. 16/20, 16/20B and 16/20C situated in Civil Lines, Kanpur was proceeded. The auction sale which has taken place on 24.3.1979 has taken place pursuant to the proclamation dated 23.2.1979 (Annexure-12) to the writ petition. Legality of the sale was challenged by petitioners of both writ petitions before the Commissioner and on its rejection, before the Board of Revenue and thereafter now before this Court. In the light of the facts and details as has come on record, it is for this Court to decide that whether the main submission of respondents' side that matter may be remanded to the Board of Revenue as in view of Full Bench decision of this Court given in the case of Ram Swamp, 1990 RD 291, the revision is maintainable is to be accepted or on the facts of the present case, writ petition is to be finally decided on merits either way.
10. So far as the scope of interference by this Court in the writ jurisdiction in respect to the auction proceedings, the principle as has been laid down by the Apex Court, there cannot be any quarrel and thus it is the question of application of settled principle on the facts of present case. Before proceeding to test the facts of present case in the light of pronouncement of the Apex Court and this Court, it will be useful to notice various decisions on the point.
11. In respect to a situation where the sale has been found without publication, following observations has been made by the Apex Court in the case of A. Venkatachalam and Ors. v. E, M. Zackria and Ors., 1987 (Supp) SCC 124. The observation as made in para 3 of the aforesaid judgment is quoted hereinbelow :
"The case of Srikakuta Chinna Venkatanarayana v. Pannapati Elias, deals with the question of non-publication of sale. Rajamannar, C. J. after referring to the observations of Justice Seshagiri Aiyar in an earlier case observed as follows :
Seshagiri Aiyar, J., was of the opinion that the Code itself gave some indication as to when a sale can be regarded as irregular and when illegal. He thought that on the language of Order XXI Rule 90, where there was no publication or conduct of the sale, the sale should be regarded as illegal. On the facts of the case before him, his conclusion was that in effect there had been no publication at all.
We are not now concerned with the correctness of the decision in so far as it held that on the facts of the case there had been no publication at all. The value of the decision, in my opinion lies in the enunciation of the general principle that where there is no publication, or conduct of sale, then it is not a case of mere irregularity. It is as if a sale had not been held at all within the meaning of the Code."
12. Similarly, in the decision given by Madras High Court in the case of Venkateshwara Ettu Naickar v. Ayyammal and Ors., AIR 1950 (37) Mad 367, in para 4, following observations was made :
"It is no doubt not easy to draw the line between irregularity and illegality, but where a substantial provision of law has been violated as In this case. Order XXI Rule 66 the sale should be regarded as having been illegally conducted. The objection of Order XXI Rule 66 is to afford a security for the fairness of public sales, that it has been properly published and that it would attract purchasers. But if the specific provision as to proclamation is violated, there could be no doubt that the sale cannot be allowed to stand. It cannot be said that the total failure to make the proclamation under Order XXI Rule 66 is a mere irregularity in the publication or conduct of the sale. In view of the decision in Jayarama Aiyar v. Vridhagiri Aiyar, 44 Mad 35L : AIR 1921 (8) Mad 583, and on the findings of fact of both the Courts, the sale held on 15th September, 1943, must be held to be illegal and void , and cannot be allowed to stand and is, therefore, liable to be set aside."
13. In another decision given in the case of Madappa v. Lingappa, AIR 1987 Kar 60, in paragraphs 19, 25 and 26, following observations have been made, which are quoted hereinbelow :
Para 19.--It has been laid down in Srikakula Chinna Venkatanarayana v, Pannapatti Elias, AIR 1954 Mad 1024 as ;
"The substantial question which emerges at the outset is whether a court sale held without any publication whatever of the proclamation of sale is void or only voidable at the Instance of the judgment-debtor or other aggrieved party and that only by an application under Order XXI Rule 90 of the Code. In dealing with authorities cited before me on both sides, one has to keep the distinction between a case where there has been a publication of proclamation but the publication has been found to be defective in certain particulars and a case in which there has been no public at all.
A case of this Court in which there was no proclamation at all is that covered by the decision in Venkateswara Ettu Naicker v. Ayyammal, AIR 1950 Mad 367. There, Krishnaswami Nayudu, J., after accepting the finding of the Court below that there was no proclamation at all, held that the sale held without proclamation was void. The learned Judge observed :
It cannot be said that total failure to make the proclamation under Order XXI Rule 66 is a mere irregularity in the publication or conduct of sale."
Para 25.--Therefore, it is a mandatory provision. If the said mandatory provision is violated and if the sale proclamation is not issued at all, then it would be a violation of the mandatory provision and therefore a sale held without complying with the mandatory provision, would be a nullity and void ab initio.
Para 26.--This endorcement would show that it is as good as non-Issuing the sale proclamation as required by Order XXI Rule 66, C.P.C, Admittedly there has been no publication at all of the sale proclamation. No sale proclamation has been attached to the property. Therefore, in my opinion, these circumstances show that though the sale proclamation has been issued in this case, it is no sale proclamation at all and it does not amount to an issue of sale proclamation for publication of the sale proclamation as required by Order XXI Rules 66 and 67, C.P.C. Therefore, the sale that has been held in the execution is no sale at all. It is a nullity and void ab initio.
14. In another decision in the case of Jagannathan v. Angamuthu Filial AIR 1990 Mad 226, Madras 1 AWC 55"1 High Court has referred to observation of the Apex Court:
"In Shalimar Cinema v. Bhasin Film Corporation, AIR 1987 SC 2081, their, Lordships have observed in para 3 as follows :
"But we do wish to say that the Court has a duty to see that the requirement of Order XXI Rule 66 are properly complied with. In the words of Judicial Committee, "in sales under the direction of the Court, it is incumbent on the Court to be scrupulous In the extreme". Though it may not be necessary for the Court to make a valuation and enter it in the sale proclamation in every case, it is desirable at least in cases of sale of valuable property that the Court make Its valuation and enter it in the sale proclamation. We think it necessary to add that no action of the Court or its officers should be such as to give rise to the criticism that it was done in an indifferent or casual way. We are constrained to make these observations because It was found by the learned single Judge in the present case that there actually was no application under Order XXI Rule 66 and that the sale proclamation was prepared in a routine fashion."
In Sankaranarayna v. Sankara lyer, AIR 1954 Tray Co 226, a Division Bench of that High Court held ; that in view of the provisions of Order XXI Rules 66 and 67, C.P.C, without the Court drawing up and setting the proclamation for the sale of property sought to be sold, there cannot be a legal sale. Further, relying on the decision of this Court in Appu v. Achuta Menon, AIR 1926 Mad 755, it was also held :
"The authority to settle the proclamation and the obligation to draw it up are upon the Court. These cannot be delegated. Such a settlement of proclamation is a necessary condition to the validity of the sale by Court. The circumstances that the judgment-debtor default to appear in response to an intimation of the date fixed for the settlement of the proclamation is not one that will enable the Court to sell property without settling the proclamation for which purpose the date is fixed and intimation given."
15. In respect to the question that merely on the ground that no specific averment has been made in the application about specific injury, application of judgment-debtor is to be rejected, in the decision given by Apex Court in the case of Laxmi Devi v. Mukand Kanwar, AIR 1965 SC 834, following observations were made in para 10 of the judgment :
"It is true that before an application made under Order XXI Rule 90 can succeed, the applicant has to show that the impugned sale was vitiated by a material irregularity or fraud in publishing or conducting it ; and as required by the proviso, it is also necessary that he should show that in consequence of the said irregularity or fraud, he had sustained substantial Injury. Therefore, Mr. Bisham Narain is right when he contends that the application made by respondent No. 1 ought to contain an allegation in regard to the material irregularity as well as an allegation as to substantial Injury. But in our opinion, in a case like the present, where substantial injury is alleged to be implicit in the material irregularity set out in the application, it would be too technical to hold that the application should be dismissed on the preliminary ground that no specific or express averment has been made as to substantial injury suffered by respondent No. 1."
16. In respect to sale proclamation in which description has not been given of the property, i.e., in respect to area, valuation, it is to be auctioned in one lot or in various lots, the observation as has been made by the Apex Court in paras 19 and 20 In the case of Gajadhar Prasad v. Babu Bhakta Ratan, AIR 1973 SC 2593, are quoted below :
"Para 19.--We find from a perusal of the sale proclamation in this case that even the area of the compound in which the two bungalows were situated was not there. The land in the compound is evidently nazool lease hold land but the unexpired period of the lease or rent payable on it are not mentioned. It was not stated whether the bungalows, which were valued separately, would be sold as one or two items of property. Probably, it was left to the Amin to exercise his own discretion in this matter, as he had exercised it in the case of Colonelgunj property. The cumulative effect of all the features of the case mentioned above is that we think that there was material irregularity here in the conduct of the execution sale of the two bungalows."
"Para 20.--We now turn to the question of substantial injury. The result of the separate sales of the houses in Colonelgunj was that when sale prices were added upon, they fetched a considerable higher price that put upon these properties, lumped together in one lot, by the decree-holders. The High Court had also found that, sales of the two bungalows on the Tej Bahadur Sapru Road separately would probably similarly have fetched a higher price. The affidavit dated 19.7.1947, filed by the judgment debtors, as stated above, had not been controverted by any material put forward by the decree holders."
17. In respect to the situation where the concerned authority has not applied his mind that whether the amount can be recovered by sale of part of property or whole, the Apex Court in the case of Desh Bhandu. Gupta v. N. L. Anand and Rqjinder Singh, JT 1993 (5) SC 313, made following observations :
"Service of notice on judgment debtor under Order XXI Rule 66(2), unless waived by appearance on remained ex parte, is a fundamental step in the procedure of the Court in execution. J.D. should have an opportunity to give his estimate of the property. The estimate of the value of the property is a material fact to enable the purchaser to know its value. It must be verified as accurately and fairly as possible so that the intending bidders are not misled or to prevent them from offering inadequate price or to enable them to make a decision in offering adequate price............Moreover, Rule 66 (2) (e) requires the Court to state only nature of the property so that the purchaser should be left to judge the value for himself. But, the essential facts which have a hearing on the very material question of value of the property and which could assist the purchaser in forming his own opinion must be stated, i.e.. the value of the property."
.....................It is true that there is distinction between mere irregularity and material irregularities and the sale is not liable to be set aside on proof of mere irregularity. It must be material irregularity and the Court must be satisfied that on account thereof substantial injury was sustained by the appellant. The sale of 550 sq. yards for recovery of paltry sum of Rs 7,780.33 without selling a portion thereof, caused substantial injury to the appellant."
18. In another decision given by Apex Court in the case of Ambati Narasayya v. M. Subba Rao, 1989 (2) AWC 1461 (SC) : AIR 1990 SC 119, similar observation was made in para 9 of the judgment :
"We may again hark back to the case of the appellant. The amount claimed in execution petition was about Rs. 2,400. To realise that amount the land measuring 10 acres was sold for Rs. 17,000. The appellate court has stated that the land being one, could not have been divided. Sri Ganesh, learned counsel for the respondent sought to justify that view. But we find it difficult to appreciate that reason. It seems to be against common sense. The land Is not indivisible. Nor division is impracticable or undesirable. Out of 10 acres, the Court could have conveniently demarcated a portion and sold it. Unfortunately, no such attempt was made and It was not even thought of. The Court has blind fold sold the entire property. This is an usual feature which we have noticed in most of the execution cases. We must deprecate this tendency. There is a duty cast upon the Court to sell only such property or a portion thereof as necessary to satisfy the decree. It is a mandate of the Legislature which cannot be ignored. We cannot, therefore, sustain the impugned sale. It must be set aside being in contravention of the provisions of Rule 64, Order XXI, C.P.C."
19. In the decision given by Apex Court in the case of Nani Gopal Paul v. T. Prasad Singh, AIR 1995 SC 1071, it has been held that the Court is not to remain as a silent spectator, If the sale is found to be void. Observation made in para 4 of the judgment is quoted below :
"We are of the view that we can take suo motu Judicial notice of the illegality pointed out by the Division Bench, committed by the single Judge of the High Court In bringing the properties to sale. Accordingly, we are of the view that the circumstances are sufficient to vitiate the validity of the sale conducted by the Court . Receiver as approved by the learned single Judge.
Confirmation of sale was illegal. Though, as contended by Sri Ganesh that normally an application under Order XXI Rule 89 or 90 or under Section 48, C.P.C. need to be filed within limitation to have the sale conducted by the Court set aside and that procedure need to be insisted upon, we are of the view that this Court or appellate court would not remain a mute or helpless spectator to obvious and manifest illegality committed in conducting court sales. We are informed and it is not disputed that the appellant had deposited only Rs. 5 lakhs and balance amount. was assured to be deposited only after delivery of possession. That also would be illegal."
20. In respect to interference in writ jurisdiction, even if alternative remedy is available, if the matter remained pending for quite long time and facts are so apparent, this Court in the decision given in the case of M/s. Shyam Gas Company v. State of U. P., AIR 1991 All 129, has made following observation in paras 9 and 10 :
"Para 9.--............But main consideration on which we reject this preliminary objection is that now after writ petition being pending in this Court for more than four years, it is not desirable to throw the petitioner on the ground of alternative remedy or on the ground that they have filed a suit and later withdrew it in 1986. It is true when effective alternative remedy is available to a party, this Court could always decline to exercise a discretion under Article 226, but where the writ petition has been admitted and is pending for the last several years and party being heard' on various occasions for the purpose of even interim matters it would not be right to the Court to unseat the petitioner on the ground of alternative remedy."
"Para 10.--However, this will depend on the facts of each case and if it can be shown that there is some exceptional circumstance then even though an alternative remedy by way of arbitration may exist, this Court can exercise its discretion under Article 226 of the Constitution of India. In a case where a disputed question of fact is to be agitated a writ petition would not be a proper remedy.
In the present case, we feel, the second preliminary objection is not sustainable on two grounds : Firstly, the petitioner has challenged clause 28 of the agreement to be void being against public policy and where a party challenges the validity of any part of the agreement itself the authority created under the said agreement will not be competent to adjudicate the same, and, secondly, on the parity of the reasoning as we have said in respect of the suit once this writ petition has been admitted and the matter being pending for the last four years, it would not be right and proper for this Court to decline to exercise the discretion under Article 226 of the Constitution and to send the petitioner back to the arbitrator especially where the only and the main question Involved in these writ petitions is whether termination of contract of gas agency by the Corporation was valid or not."
21. The Apex Court in the decision given in the case of State of Himachal Pradesh v. Raja Mahendra Pal, 1999 (2) AWC 2.78 (NOC) : AIR 1999 SC 1786, has made following observation in para 6 :
"It Is true that the powers conferred upon the High Court under Article 226 of the Constitution are discretionary In nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere contractual rights arising out of an agreement particularly in view of the existence of efficacious alternative remedy. The constitutional court should insist upon the party to avail of the same instead of invoking the extraordinary writ jurisdiction of the Court. This does not however debar the Court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of alternative efficacious remedy. The existence of the special circumstances are required to be noticed before issuance of the discretion by the High Court while invoking the Jurisdiction under the said Article............."
22. So far as the case In hand is concerned, auction sale has taken place pursuant to proclamation dated 23.2.1979. On the top of this proclamation, it is mentioned "Proclamation in case of Attachment under Section J50 (See Section 155 of Act No. Ill of 1901)". The Act No. 3 of 1901 is the U. P. Land Revenue Act. As in the proclamation under which sale has taken place, there is mention of Sections 150 and 155 of the Land Revenue Act, both are hereby quoted :
"150. Attachment of land.--The Collector may, in addition to, or instead of any of the other processes hereinbefore specified attach, and take under his own management, any specific area, share, patti or mahal in respect of which an arrear is due, but no land shall be held under attachment for the same arrear for a term exceeding three years from the first day of July next following the attachment:
Provided that if the arrear is sooner liquidated, the land shall be released and surplus receipt (if any), made over to the defaulter or his legal representative.
155. Proclamation of attachment or annulment of settlement.--When the Collector attaches any land under Section 150, or transfers it under Section 152, or when the settlement of any land has been annulled under Section 153, he shall issue a proclamation thereof."
23. The provision as is contained in Section 150 of the Land Revenue Act, under which sale proclamation was Issued clearly states about attachment of land. The purpose of attachment of the land appears to be that it is a caution for the defaulter to pay the amount failing which, next step of sale is to take place. In the event, recoverable amount is not paid by defaulter, the steps are to be taken under Section 163 of Land Revenue Act which speaks about issuance of proclamation of sale. At this stage. Section 163 will be relevant to be quoted here :
"163. Proclamation of sale.--When the sale of any land or other immovable property has been sanctioned under Section 160 or Section 161, the Collector shall issue a proclamation of the intended sale, specifying the land to be sold, and the revenue (if any), assessed thereon, the arrears, for which it is to be sold, the time and place of sale, whether or not the land is to be sold free of encumbrances under Section 161, and any other particulars the Collector may think necessary."
24. The proclamation of sale which is issued under Section 163 of the Act No. 3 of 1901 is in Form IX which mentions as bellow :
Form IX Proclamation of sale of land or other immovable property --
["See Section 163 of Act No. 3 of 1901"].
25. The petitioners have very specifically pleaded in paragraphs 31 to 33 of the writ petition and also in paragraphs 9 to 11 of the supplementary-affidavit that no proclamation of sale was at all issued and thus, there is no sale in the eye of law. In the counter-affidavit filed by the State Government in paragraphs 22 and 23, it has been stated that the proclamation dated 23.2.1979 (Annexure-12) is the proclamation of sale and that has been issued in accordance with law. Thus, it is clear that the proclamation dated 23.2.1979 on the basis of which, auction sale is said to have taken plate, under law, not being a proclamation of auction, proceedings of auction sale cannot be held to be merely irregular rather auction sale is without any proclamation at all. The proclamation dated 23.2.1979 on the basis of which auction is said to have taken place itself mentions as proclamation in the case of attachment. Besides aforesaid, the proclamation dated 23.2.1979 do not give specific detail of the property, description of approximate value and whether it is to be auctioned in one lot or In separate lots. Details of property as mentioned in proclamation dated 23.2.1979, is house Nos. 16/20 (16/20B and 16/20C), Civil Lines, Kanpur from which, prospective bidder may not be in a position to understand that whether these are three separate and independent houses/units or it is only one house and other two are the part of it. In fact, all the three houses, i.e., 16/20, 16/20B and 16/20C are separate houses having separate assessment as has come on record. By the aforesaid also, bidders can be safely said to have been misled and thus the purpose of public auction, inviting large number of bidders to participate also cannot be said to have been achieved. In the same manner, there is nothing on record to demonstrate that any effort was made by the recovery officer by applying his mind that whether the amount for which recovery is being pressed, not being huge one could be achieved by auctioning all the three houses or only by auctioning one or two houses. All the three houses appears to have been put to auction in one lot by which an amount of Rs. 1,61,000 has been received. In the event, houses would have been auctioned by making them as separate unit, it might be possible that much more amount could have been obtained. On record there appears to be valuation report in respect to the property, given by valuation officer. Income Tax Department which speaks about much higher valuation of properties. Commissioner, Income Tax In the letter dated 22.10.1979 written to the Commissioner of Revenue expressed his surprise on the valuation on which, three houses of Civil Lines, Kanpur, has been auctioned. The valuation as has been assessed in the years 1971 to 1973 ranged between nine to eleven lacs. Of course on the basis of that valuation as made by the Valuation Officer of the Income Tax Office which was for different purpose, value of property which is to be received in the auction, is not to be finally accepted, but the fact remains that three houses situated in Civil Lines, Kanpur, has been auctioned for an amount of Rs. 1,61,000. This aspect is being mentioned just as a fact and as an added circumstance In relation to the auction proceedings and thus It may not be taken as a view of this Court that inadequacy of price is ground to cancel the sale proceeding. The recovery officer, i.e., the Deputy Collector (Sales Tax) being in haste to recover the tax amount, himself moved an application on 14.12.1978 for appointing him as auctioning authority, although it is for the Collector to take steps in this respect. In the present case, the Collector has not taken any step, but the Deputy Collector himself by writing application got himself appointed as auctioning authority. The order of his appointment as auctioning authority was passed by the Collector on 14.12.1978 itself, the date on which the application was moved. It is also to be noticed that from the side of petitioners repeated applications were moved before the recovering authority informing him that number of movable and immovable property of the firm in the shape of bank account, factory building and machinery etc. are available and therefore, the tax amount can be recovered from those properties. The recovery officer was also well informed by the petitioner that appeal against the assessment order has already been filed and is pending and there is every hope of Its success. In fact, ultimately, the liability of the tax was withdrawn also. The facts as noted above and the observation as made above, are clearly borne out from the record itself, and no assessment of any evidence has been made rather the facts noted above are crystal clear from the records. It is thus clear that the auction sale took place without any sale proclamation at all as is required to be published in Form IX under Section 163 of the Land Revenue Act. There is no detail in respect to various things which are required to be mentioned in the proclamation about property, i.e., its approximate value, the. manner of conducting sale if the properties are several in number. In view of aforesaid, this Court is satisfied, that by illegal exercise on the part of recovery authority, petitioners have suffered substantial injury as argued by them. Argument of learned counsel for the respondents about lack of pleadings and proof about substantial injury is not correct as that has been proved in the facts of the present case and in view of the decision of the Apex Court as given in the case of Nani Gopal Paul v. T. Prasad Singh, AIR 1995 SC 1O71, it can be accepted to be implicit also if the sale is void and nullify. It is not a case that all three houses auctioned were not divisible. Houses being independent unit, auction could have proceeded initially in respect to one of them and on some shortfall of another house and then in respect to third house. On account of various details, having not been mentioned in the proclamation, large number of bidders might not have come, which is also to the prejudice of the petitioners. In view of aforesaid, auction sale cannot be said to be fair, fetching adequate consideration. After noticing aforesaid, this Court is satisfied that no disputed question of fact is to be investigated and thus after exchange of pleadings, as the matter remained pending before this Court for the last about 18 years asking the petitioners to approach Board of Revenue will not be in the ends of justice, rather it will be injustice to both sides. The Apex Court in the case of Nani Gopal Paul (supra) has clearly ruled that on finding that the sale proceeding was void and nullity, the Court is not to sit as silent spectator. If an action is void, then unless the aggrieved party by his own conduct permits the effect of. that action to become operative, that cannot be legalized only by passage of time. In the present case, petitioners having promptly reacted against the impugned action, merely on the ground that long time has passed relief, if any, if he is entitled cannot be negatived. Accordingly, this Court being convinced with injury and injustice which has occasioned with the petitioners has to take a view that the auction proceedings Including the grant of sale certificate and the impugned orders are to be quashed and possession over the properties is to be restored to petitioners. It may be slightly harsh for the respondents who have taken the property in the auction proceedings but we do not know that who were the parties in the entire mischief. As the respondent being the highest bidder in the auction proceeding has deposited the bid amount, he will be entitled to get back money so deposited with interest of 6% per annum. So far as bid amount is concerned, as it is said that the tax liability stood wiped of, it will be for the department and for the petitioners of both writ petitions to pay their respective part of money to the auction purchaser with an interest of 6% per annum, within a period of six weeks on filing application in this respect by the auction purchaser before the Commissioner of the Division for the aforesaid purpose.
26. For the reasons recorded above, both writ petitions succeed and they are allowed. The impugned auction proceedings dated 24.3.1979, the sale certificate and the orders passed by the Commissioner and the Board of Revenue, are hereby quashed. The possession of properties in question shall be restored to the petitioners, within a period of six months. The bid amount along with interest as indicated above, shall be returned to the auction purchaser, within a period of six weeks from the date of moving application as indicated In this judgment. Parties to bear their own costs of litigation.