Heard learned counsel for the parties.
Through this review application review of my judgement dated 5.4.2011 through which I allowed the writ petition has been sought.
Petitioner's agricultural land having area of 2.34 acres was sold through auction on 18.9.1989 and was purchased by respondent no.6 for Rs.42,000/- in realisation of some dues which were recoverable like arrears of land revenue. Auction sale was confirmed on 23.10.1989. Petitioner's objections under Rule 285(i) of the Rules framed under U.P.Z.A.L.R. Act Sale case no.1/218 of 1989 Suresh Tiwari Vs. Vishwanath and others were rejected by Additional Commissioner(II) Varanasi division Varanasi on 17.3.1990. The writ petition was directed against auction sale, Its confirmation order and the order passed by the Additional Commissioner. Through judgment dated 5.4.2011 I set aside all the three orders (sale, confirmation of sale and rejection of petitioner's objection).
I allowed the writ petition only on the ground that S.D.O./Assistant collector Ist Class in charge of the division had no jurisdiction or authority to conduct the auction sale and to confirm the sale placing reliance upon two Division Bench authorities of this Court reported in Ajay Upadhayay Vs. Collector Ballia 2008 (3) ADJ 109 and Ram Awadh Tiwari Vs. Sudarshan Tiwari 2008(6) ADJ 776 (DB). However, afterwards in another writ petition being writ petition no.6437 of 1991 Shiv Narain Dubey Vs. State of U.P. decided on 19.9.2011, I held the Division Bench authority of Ram Awadh Tiwari per incurium as it had not taken into consideration the notifications dated 30.5.1981 and G.O. dated 10.8.1981.
The Division Bench authorities had mainly placed reliance upon an earlier notification dated 17.1.1976 which is quoted below:
"No.1/1/76(III)(6)-Rajaswa-7 January 17, 1976 In exercise of the powers under clause (4) of section 3 of the U.P. Zamindari Abolition and Land Reforms Act 1950 (U.P. Act. No. 1 of 1951), the Governor is pleased to, empower all the Assistant· Collectors of the First Class, who are Incharge of the sub-division, to discharge the functions of a "Collector" under Section 286 of the said Act in respect of any, holding of a defaulter of which he is a Bhumidhar, Sirdar or Assami, subject to the condition that such sales are approved by the Collector."
However, the said notification had been rescinded through notification dated 30.5.1981 published in U.P. gazette dated 29.8.1981 which is quoted below:
"No.U.O.-592/1-7-80-Rev-7 May 30, 1981 In exercise of the power under clause(4) of section 3 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act no.1 of 1951) read with Section 21 of the U.P. General Clauses Act, 1904 (U.P. Act no.1 of 1904) the Governor is pleased to rescind the notification no.1/1/76(3) (6)-Rajaswa-7, dated January 17, 1976 empowering all Assistant Collector of First Class, Incharge of the Sub Division to discharge the function of a "Collector" under Section 286 of the aforesaid act."
The position was clarified by Govt. Order issued on 10.8.1981.
The notification and G.O. Of 1981 were not considered by the Division Benches.
Thereafter, review petition was filed in the writ petition of Shiv Narain Dubey which was dismissed by me on 30.11.2011. Second para of the said judgment is quoted below:
"Sri A. B. Singh, learned counsel for the applicant has emphatically argued that by virtue of para-1(1) and Paragraph-3 of G.O. dated 10.08.1981, notification dated 17.01.1976 still survives. The argument is misconceived. On 17.01.1976 three notifications were issued. Number of one notification, which is mentioned in Para-1(3) of G.O. dated 10.08.1981, was 1/1/76(3)(6)-Rajaswa-7. The two other notifications issued on the same date and mentioned in Para-2 of the G.O. dated 10.08.1981 bore the same number with the difference that in the first bracket numbers 2 and 3 were mentioned. The second and third notifications containing numbers 2 & 3 in the first bracket had conferred power of auction upon the SDOs (Assistant Collector, Incharge of the Sub-Division) under Sections 284 and 286 of U.P.Z.A. & L.R. Act respectively with the rider that auction should be affirmed by the Collector. The second & third notifications were withdrawn, hence the original position revived where apart from the powers under Section 198(4) of U.P.Z.A. & L.R. Act, powers of Collector under all other sections of the Act could be exercised by the SDOs without any approval etc. of the Collector. The notification of 17.01.1976 containing figure-1 in the first bracket which was not recalled/ rescinded and which continues till date is in respect of recovery of the amount of less than Rs.3000/-. In respect of such amounts auction is to be done by Assistant Collector which means Tehsildar."
Accordingly, after the notification and G.O. of 1981 it is quite clear that the position brought into existence by initial G.O. Dated 11.6.1953 revived. The G.O. Of 1953 permitted the S.D.O./Assistant collector, First class In-charge of the Sub division to perform all the functions of the Collector (with the only exception as carved out through notification dated 5.12.1968 that S.D.O. can not hear the cases for cancellation of lease under Section 198 (4) of U.P.Z.A.L.R. Act.) Accordingly, I review and set aside my judgment and order dated 5.4.2011 in so far as it held that the S.D.O. was not competent to hold and confirm the action.
Even at the initial stage when arguments in the writ petition were heard learned counsel for the petitioner had argued that by virtue of Rule 285(G) of the Rules framed under U.P.Z.A.L.R. Act, after postponement of auction sale on 10.9.1989 on the ground that it was Sunday next date could not be fixed before one month hence auction held after eight days of the said day i.e. on 18.9.1989 was invalid. In my judgment dated 5.4.2011, I held that in view of my finding that S.D.O. had no jurisdiction to conduct and confirm the auction it was not necessary to decide the said point. However, now as I have reversed the point on which I allowed the writ petition hence this point that as to whether sale could or could not be held within eight days from the initial date fixed for sale requires decision. It will be more appropriate if this point is decided by the Additional commissioner. This point was raised before Additional commissioner also as noticed by him in the earlier part of his judgment, however it had not decided the same.
During pendency of the recovery proceedings petitioner after being permitted through orders passed on his applications deposited Rs.6050/- on 7.9.1989 and Rs.45,000/- on 12.10.1989, however, sale was confirmed on 23.10.1989 i.e. after 11 days of the deposit. By virtue of Rule 285-H of the Rules framed under the Act it is provided that within 30 days from the date of the auction sale the defaulter whose immovable property has been sold may deposit the entire arrears due along with 5 % of purchase money and cost of the sale and on such deposit Collector shall pass an order setting aside the sale.
It is mentioned in my judgment dated 5.4.2011 that on inquiry from Court learned counsel for the petitioner stated that the amount of Rs.45000/- deposited by him on 12.10.1989 and other amounts deposited by him before Tehsil authorities were sent by them to the bank concerned and thereupon the bank declared that no further amount was due against the petitioner. It is further mentioned in the said judgment dated 5.4.2011 that learned counsel for auction purchaser respondent no.6 stated that his client had not informed him that what happened to the amount of Rs.42000/- which was deposited by him as auction money.
As the matter is being remanded to the Additional Commissioner hence he shall also decide the effect of deposit of Rs.6050/- and Rs.45,000/- made by the petitioner on/by 12.10.1989 in the light of the provisions of Rule 285 H. Learned counsel for the petitioner supplied copy of statement of account dated 11.2.2011 issued by SBI A.D.B. Ballia regarding payment of the loan amount, a copy of the same shall be filed by the petitioner before Additional Commissioner also.
Accordingly, review petition is allowed judgment and order dated 5.4.2011 is set aside writ petition is allowed and matter is remanded to the Additional Commissioner II Varanasi Division, Varanasi to decide the above two points i.e. applicability of Rule 285 G and H of the Rules framed under the Act. Both the parties are directed to appear before the Additional commissioner along with certified copy of this judgment on 23.8.2012 and Additional Commissioner shall decide the matter very expeditiously. Absolutely, no unnecessary adjournment shall be granted to any of the parties.
It is mentioned in my judgment dated 5.4.2011 that at least since August 2002 auction purchaser is in position of the land in dispute.
Accordingly, in order to adjust the equities it is directed that possession of the land in dispute shall at once be handed over to the petitioner. Petitioner is restrained from alienating the property in dispute until objections are finally decided by the additional Commissioner. However, if petitioner seeks more than two adjournments before the Additional Commissioner then possession shall be redelivered to the auction purchaser respondent no.6.
Order Date :- 3.7.2012 vkg Court No. - 59 Case :- WRIT - C No. - 5044 of 1990 Petitioner :- S. Tewari Respondent :- The Commissioner Petitioner Counsel :- L.P. Singh Respondent Counsel :- S.C.,A.K.Shukla,B.K.Upadhyay Hon'ble Sibghat Ullah Khan,J.
Judgment dated 05.04.2011 allowing the writ petition set aside and fresh judgment passed.
For order see order of date passed in Civil Misc. Review Application No.138677 of 2011.
Order Date :- 3.7.2012 vkg