Court No. - 18
Case :- WRIT - C No. - 13468 of 2018 Petitioner :- Pramod Shukla Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Prabhakar Awasthi Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard Sri Prabhakar Awasthi, learned counsel for the petitioner and Sri Sanjay Kumar Singh, learned Standing Counsel for the State-respondents.
Brief facts, which emerge from the record in question are being reproduced herein below:
Petitioner has approached this Court earlier by means of Writ-C No. 8559 of 2018 (Pramod Shukla versus State of U.P. & Others). The Writ Court vide order dated 7th March, 2018 disposing of the writ petition passed following orders:
"Four set of proceedings were initiated under Section 67 of the U.P. Revenue Code, 2006 against the private respondents which culminated in an order of eviction on 30.5.2017 which attained finality. It appears that over the plots in dispute, there was standing sugarcane which was auctioned in favour of the petitioner on 5.2.2018. The petitioner deposited the bid amount of Rs.10.10 lacs before the respondent concerned. The private respondents challenged the auction by way of an appeal in purported exercise of power under Section 198(3) of the U.P. Revenue Code, 2006. The alleged appellate authority, i.e., the Addl. Commissioner, Kanpur Region, Kanpur on 13.2.2018 stayed the auction dated 5.2.2018, fixing 1.5.2018 for hearing the appeal. The petitioner preferred his objections, challenging the maintainability of the appeal, wherein the appellate authority on 22.1.2018 directed the other side to file its objection on the date fixed, i.e., 1.5.2018.
It is submitted by learned counsel for the petitioner that the sugarcane being a perishable commodity, is very likely to lose sucrose (sugar) content, ends of justice would be served if an appropriate direction is issued to the alleged appellate authority to prepone the date, so that the appeal itself is heard and decided as expeditiously as possible, preferably within a stipulated period, including the issue of maintainability.
Learned standing counsel and Sri Awadhesh Singh, learned counsel for respondent no. 6 have no objection.
Considering the facts and circumstances of the case, the earlier dated fixed, i.e. 1.5.2018 is preponed to 21.3.2018, on which date, the parties shall appear before respondent no. 2 / Addl. Commissioner (Judicial), Kanpur Region, Kanpur along with a certified copy of this order, who shall sincerely endeavour to hear and decide the appeal including the issue of maintainability, as expeditiously as possible.
Learned counsel for the private respondent undertakes that they shall not seek any adjournment and would cooperate in the expeditious disposal of the appeal.
It is made clear that this Court has not commented either on the merits of the case or on the maintainability of the appeal.
This order has been passed with the consent of the parties."
When the said appeal has not been decided, the petitioner has filed the present writ petition on 11th April, 2018 with following the reliefs:
"i. Issue a writ, order or direction in the nature of mandamus commanding the respondent nos.3 and 4 to forthwith return an amount of Rs.10,70,000/- alongwith interest having been deposited by the petitioner as an auction purchaser for sugarcane standing on the land which were illegally occupied by the illegal occupier which was mandated to be vacated in terms of Section 67 (5) of the U.P. Revenue Code, 2006.
ii. Issue any other suitable writ, order or direction as this Court may deem fit and proper in the facts and circumstances of the case."
The present writ petition was taken up on 13th April, 2018 and on the said date, Sri Prabhakar Awasthi, learned counsel for the petitioner has submitted before this Court that even though the order of the Writ Court dated 7th March, 2018 has been brought to the notice of the appellate authority but instead of deciding the matter, he has proceeded to fix 4th April, 2018 as the date in the matter in arbitrary manner and on the said date the matter was again adjourned for 10th April, 2018. In this background, this Court has required the learned Standing learned Standing to file personal affidavit of the Additional Commissioner (respondent no.2) explaining the reasons as to why the order of the Writ Court dated 7th March, 2018 has not been complied with by him.
In compliance thereof, the personal affidavit of respondent no.2 has been filed wherein it has been categorically stated that on 10th April, 2018, after hearing the case of the parties and considering the entire documentary evidence on recorded, he had proceeded to reject the objections of the appellants and he has also vacated the interim order granted earlier by him on 13th February, 2018. Lastly it has been submitted that the delay, if any caused in complying with the order of the Writ Court dated 7th March, 2018 is not intentional but due to the administrative work, the same could not be decided, for which he has tendered unconditional apology.
In view of the aforesaid circumstances, the apology tendered by respondent no.2 for the inconvenience caused to the Court is accepted by this Court and the same is also being accepted by Sri Prabhakar Awasthi, learned counsel for the petitioner with great humility.
So far as the present controversy is concerned, learned counsel for the petitioner has again precisely submitted that in the interest of substantial justice, a direction may be issued to the respondents for return of the amount of Rs. 10.70 lacs along with interest as the petitioner had participated in the auction proceedings for purchase of sugar cane for which he had deposited the aforesaid money but now the sugarcane has already been perished and the petitioner is not interested in the matter. As such this Court should come for rescue and reprieve to the petitioner.
On the other hand, Sri Sanjay Kumar Singh, learned Standing Counsel has raised serious objections on the maintainability of the present writ petition. He submits that the present controversy is between two private persons inasmuch as the reliefs sought by means of the present writ petition cannot be grated by this Court under Article 226 of the Constitution of India. The entire proceedings have been initiated by private persons as per the provisions contained in Section 192 of the U.P. Revenue Code, 2006. When the petitioner has already submitted his objections in the said proceedings and the appellate authority has decided the issue and has also vacated the interim order granted earlier, then in such a situation the petitioner has every right to seek confirmation of auction sale as per the provisions contained in Section 194 of the U.P. Revenue Code, 2006 but instead of taking the recourse to the confirmation of sale, petitioner has approached this Court by means of the present writ petition for return of the money as has been deposited in auction proceedings for purchase of sugarcane. So far as the relief sought before this Court for return of amount is concerned, the same can very well be claimed by instituting a suit for damages, as the said relief cannot be accorded under the provisions of U.P. Revenue Code, 2006. Consequently at this stage, the petitioner has every right for confirmation of his auction sale being confirmed. Writ is not the proper remedy. Therefore, the present writ petition may not be entertained.
This Court has considered the rival submissions made by the learned counsel for the parties and has gone through the records of the present writ petition.
This is an admitted situation that the proceedings have been initiated under Section 67 of the U.P. Revenue Code, 2006 against the private persons, which finally culminated into an order of eviction on 30th May, 2017 from the land in question, where the sugarcane were standing. Initially, the Court in earlier writ petition referred to above had observed that the same has attained the finality but for serving the ends of justice as the sugarcane purchased by the petitioner through auction was being perished and was very likely to lose their sucrose (sugar) content, the court directed the appellate authority to decide the appeal. Now the appeal has been decided and the matter has attained the finality.
However, it may be recorded that for purchase of sugarcane standing on the plot in question auction proceedings were initiated and the same was finalized in favour of the petitioner by the Tehsildar vide order dated 5th February, 2018 for which he had deposited Rs. 10.70 lacs before the respondents.
Learned counsel for the petitioner contends that the petitioner being the bona fide auction purchaser had participated in the bid and the same had been finalized in his favour, but now the sugarcane purchased by him have already been perished and for all practical purposes petitioner has lost of his endeavour for purchase of such commodity.
At present he has aggrieved for non-disposal of the aforesaid appeal within time but once the personal affidavit has been filed before this Court and the explanation furnished therein has been accepted by this Court as well as by learned counsel for the petitioner, it cannot be fair that the appellate authority was responsible in delay of the matter, as such situation was beyond control for which neither the State respondent nor the petitioner could be blamed.
It may be recorded that the petitioner had participated in the bid and deposited the amount in question but the sale has not been confirmed by the Collector as per the provisions contained in Section 194 of the U.P. Revenue Code-2006. In such circumstances, in the interest of justice the Court is of the opinion that the amount which has been deposited by the petitioner is liable to be returned strictly in accordance with law but such relief cannot be granted by this Court as the same is beyond jurisdiction of this Court. The objection raised by Sri Sanjay Kumar Singh, learned Standing Counsel has substance.
At this stage, Sri Prabhakar Awasthi, learned counsel for the petitioner has fairly conceded that for return of money, liberty is granted to the petitioner to make an appropriate application before the Collector for redressal of his grievances.
This Court may record that the relief sought by means of the present writ petition for return of money cannot be granted by this Court, as controversy is involved between private persons, but in the interest of substantial justice, without considering the merits of the case set up by the parties and with the consent of the parties, the present writ petition is disposed of by requiring the petitioner to make an appropriate application before the Collector/District Magistrate, Farrukhabad for ventilating all his grievances, supported by such documents as may be advised, within two weeks from today, along with a certified copy of this order. On such application being made, the Collector/District Magistrate may consider and decide the same strictly in accordance with law by means of reasoned and speaking order within three weeks thereafter.
(M. C. Tripathi, J.) Order Date :- 27.4.2018 Sushil/-