JUDGMENT Shishir Kumar, J.
1. The present writ petition has been filed for quashing the order dated 4.12.1989 (Annexure 5 to the writ petition) passed by respondent No. 4 and to quash the auction dated 16.1.1988 made by respondents Nos. 1 to 3. Further a writ in the nature of mandamus commanding the respondents not to interfere the peaceful possession over the petitioners land in dispute.
2. The brief facts of the case are that the petitioner has taken a loan of Rs. 14,000/- from Allahabad Bank in the year 1981. Petitioner deposited a Sum of Rs. 4,400/- on 17.6.1987 towards the loan. On account of drought and unavoidable circumstances, the petitioner could not deposit the remaining mount so the bank has directed the Tehsil authorities for recover the said amount as arrears of land revenue. The petitioner was not served any kind of notice or citation by the respondents and on 15.1.1988 the Amin (Collection) came to the petitioner and has received a sum of Rs. 2,200/- and a receipt to that effect was issued, which has been annexed as Annexure 1 to the writ petition. The proceeding regarding recovery of the aforesaid amount was initiated without any information to the petitioner by the Tehsil Authorities and Tehsil authorities have auctioned the petitioner's holding of Plot No. 149 area 2 acre 85 decimal on 16.1.1988. When the petitioner deposited Rs. 2,200/- on 15.1.1988. the Collection Amin has not informed anything to the petitioner regarding the auction and has assured the petitioner that the said amount will be deposited and he was permitted to deposit the remaining amount within a period of one month but the respondents authorities in an arbitrary manner behind the back of the petitioner has auctioned the property of the petitioner on 16.1.1988. The aforesaid proceeding of auction was admittedly behind the back of the petitioner without any notice and citation.
3. When on 25th March, 1988, the petitioner who was working in Jabalpur for the purposes of livelihood came back then he was informed that his land has already been auctioned. Then immediately petitioner moved an application to the Collector, Banda, who rejected the said application on the ground that that according to the procedure under Rule 285(I) of the Zamindari Abolition & Land Reforms Act 1952, it provides for filing an objection before the Commissioner. Therefore, the application filed before the Collector is not maintainable and it is open to the petitioner to approach the Commissioner. Then he immediately filed an objection under Rule 285(1) of the aforesaid Rules before the Commissioner, Jhansi Division, Jhansi. The said objection was accompanied with an application under Section 5 of the Limitation Act stating all the relevant facts that the petitioner has got no knowledge and no notice was ever served to the petitioner before the auction of the property of the petitioner and one day before some amount was taken by the Collection Amin and the same was deposited. The respondent No. 4 vide its order dated 4.12.1989, rejected the objection of the petitioner on the ground that objection of the petitioner was filed beyond time, holding therein that in the eye of law the objection under Section 285 (I) provides that objection has to be filed within a period of 30 days and admittedly, the same has been filed after a lapse of 30 days. Rule 285(1) is being reproduced below:
285-I. (i) At any time within thirty days from the date of the 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.
It has been submitted by the learned Counsel for the petitioner that observations and findings to this effect recorded by the respondent No. 4 is not sustainable in law as it is well settled that Section 5 of Limitation Act is applicable in respect of Zamindari Abolition and Land Reforms Act and Rules and there is no prohibition to this effect, therefore, the Judgment and order passed by the respondent No. 4 is liable to be quashed. The petitioner requested before the Commissioner that petitioner is ready to deposit the due amount against the petitioner in toto but the respondent No. 4 has not accepted the request of the petitioner. The valuable properties of the petitioner to the tune of Rs. 50,000/- has been auctioned in a meagre amount of Rs. 20,000/-. The period of 30 days will be applicable as provided under the Rules only in a case were auction has taken place after due notice. Petitioner submits that auction proceedings has been illegally confirmed only on the basis of affidavit submitted by the purchaser for complying the procedure given under Rules 154 of U.P.Z.A & L.R Rules, 1952.
4. The writ petition was filed before this Court on 16.3.1990 and interim order was passed on 29.3.1990 directing the petitioner to deposit Rs. 19,000/- within a period of 2 months. In compliance with the aforesaid order, the petitioner has deposited the amount on 26.4.1990 with Tehsil Authority. The said amount is still lying with the respondents. On the wrong legal advice the petitioner has filed a suit but the suit was dismissed and subsequently the appeal filed thereof was also dismissed. The further submission has been made by the learned Counsel for the petitioner is that as required under the Rules, the auction proceeding has to be confirmed by the competent authority i.e. Collector but the same has not been confirmed by the Collector, which is apparent from Annexure 2 to the writ petition as the same has been alleged to have been confirmed by order dated 23.2.1988 by the Sub Divisional Magistrate. Under the Rules, the Sub Divisional Magistrate has got no authority to confirm the auction. In 1993, Revenue Decision, 62, Mohd Yamin and Ors. v. Commissioner, Meerut Division, Meerut and Ors. This Court taking a view that there is no authorisation by the State by any notification in the gazette to conduct the auction sale and for the purposes of confirmation. In spite of the sale has been confirmed, the Commissioner has got full authority to set aside the same on that ground. In Judgment Today 1997(8) Supreme Court 191, Smt. Shanti Devi v. State of U.P. and Ors. the Apex Court while considering the Rules 285-H, 285-1, 285-J and Order 21, Rules 89 and 90 CPC has held that confirmation of auction sale of the property under Section 11-A of the U.P. Agricultural Credit Act 1973 under Rule 285-J, it is statutory duty of the Collector to keep Section 154 in the mind at the stage of confirmation. The Assistant Collector in confirming the sale is not having the jurisdiction. The Apex Court has further held "it is clear that statutory duty is cast on the Collector to keep Section 154 in mind at the stage of confirmation of sale. Merely attaching the affidavit of the purchaser, in our view, does not amount to application of mind but on the other hand, amounts to non-application of mind" The Apex Court has further held that even if the appellant's application before the Commissioner is to be treated as not maintainable, it is open to the appellant to challenge the order of confirmation on the ground of violation of the requirement of Section 154.
5. In view of the aforesaid fact, the learned Counsel for the petitioner submits that order passed by the respondent No.4 is liable to be quashed as the sale was not confirmed in accordance with the Rules, therefore, the objection if any filed by the petitioner assuming the fact that it was not within time, as the limitation Act is applicable, therefore, it should have been considered on merits because it was established that the total auction proceeding has taken place without any notice to the petitioner and as soon as the petitioner came to know he filed an objection. On the other hand, the auction purchaser has filed a counter affidavit and it has been stated that the sale proclamation was issued on 10.12.1987 fixing 16.1.1988 for auctioning the agricultural Plot No.149 areas 2.85 acre.
On 16.1.1988, the auction was held. Respondent being highest bider same was accepted and 1/-4"1 bid amount was deposited by the respondent No. 5. The balance amount was deposited on 28.1.1988, as such, the entire amount of Rs. 17,000/-was deposited by the auction purchaser. On 23.2.1988, the entire papers relating to the auction sale was sent to the Sub-Divisional Officer, who after satisfying by its legality have approved the said auction. Since no objection was filed within 30 days under Rule 285-H or 285-1 of the Rules, as such, the auction dated 16.1.1988 was confirmed in favour of the respondent No.5 and a sale certificate in favour of the respondent No. 5 was issued. The petitioner after confirmation and issuance of sale certificate filed an objection under Rule 285-1 which has rightly been rejected by the respondent No. 4. The petitioner filed a writ petition without stating the fact that auction has already been confirmed. As the suit has been filed and the same has been dismissed, therefore, the present writ petition filed by the petitioner is not maintainable.
6. Further submission has been made by the learned Counsel for the respondent is that limitation Act is not applicable as the period of limitation for filing the objection has been provided under the Rules and if no objection has been filed, sale has to be confirmed and after confirmation of sale, the objection cannot be entertained. In spite of the fact that the said objection has been filed annexing the application under Section 5 of the Limitation Act explaining the delay, therefore, the respondent No.4 has rightly rejected the same.
7. I have heard learned Counsel for the parties and have perused the record. From the record it is clear that auction has taken place on 16.1.1988 and it is also not disputed by the respondents that on 15.1.1988, one day prior to the date of auction the Collection Amin has received a sum of Rs. 2,200/-towards the loan against the petitioner, if this fact is correct that petitioner was having knowledge what was the occasion to deposit the money on 15.1.1988. There is nothing on record to show that any notice to this effect IF regarding the auction dated 16.1.1988 was ever given to the petitioner, as it is also apparent from the record and respondent is not able to show before this Court on the basis of relevant record that according to Rules, the confirmation has been made by the Collector, if the auction has been confirmed by the Sub-Divisional Magistrate then in my opinion, in the eye of law it cannot be treated to be confirmed and it is in total contravention of the provisions of Rules 285-1 to 285-H of the Rules. The contention of the respondents to this effect that Limitation Act mentioned for filing the objection against the auction proceeding, Section 5 of the Limitation Act will not be applicable. But in my view if there is no express exclusion under the Act Section 29 Sub Clause 2 of the Limitation Act will come into play and the same can be taken to be applicable as held in Fair Growth Investment Ltd. v. Custodian. Therefore, in my view, the respondent No.4 should have taken into consideration this fact that according to Rules that as the auction was not confirmed by the competent authority and petitioner was not having any knowledge of the auction proceeding, therefore, the period mentioned under Rule 285-1 will not be applicable and Limitation Act being applicable. The grievance of the petitioner should have been considered on merits. But the respondent No. 4 has clearly erred in law in ignoring this aspect of the mater.
8. The objection of the petitioner was rejected only on the ground that the same has not been filed within time as provided under the Rules. The respondent No. 4 ought to have see and to record a finding that in case auction has not been confirmed by the competent authority whether any objection against the auction proceedings not within 30 days as provided under the Rules will be maintainable or not. From the perusal of the Rules, it is clear that if the auction proceeding has not been confirmed the objection can be entertained if the objector satisfied the Court for not approaching the competent authority within time. But the respondent No. 4 has failed to take into all these things into consideration. If under the eye of law there is no auction and the proper procedure has not been followed and it has not been confirmed by the competent authority, in spite of the aforesaid fact, whether the Commissioner cannot take into consideration the relevant factors for not approaching the Court in time as provided under the Rules and he will reject the objection only on technical ground that as it has not been filed within 30 days, therefore, it is not maintainable. The requirement is that an objection is to be filed within 30 days and further a provision to this effect that if the auction is confirmed by the competent authority then the Commissioner cannot exercise the jurisdiction but in this case it has not been confirmed by the competent authority, whether in that circumstances also the Commissioner cannot consider and decide the objection on merits. In my opinion, it cannot be, if the auction sale is not confirmed by the competent authority, then the Commissioner is empowered to consider the same on merits if the aggrieved person satisfied the Court that what were the reasons for not approaching the court within time.
9. In such circumstances, 1 am of the view that order dated 4th December 1989, passed by the respondent No. 4 (Annexure 5 to the writ petition) is not sustainable in law and is hereby quashed. The writ petition is allowed and the respondent No. 4 is further directed to decide the objection of the petitioner in according with law on merits in view of the observations made above after affording full opportunity to the parties. As the matter is of 1989, and the writ petition is pending before this Court from 1990, it will be appropriate that the said objection of the petitioner be decided within a period of six months from the date of production of the certified copy of this order. No order as to cost.