Heard Sri K. Ajit, learned counsel for the petitioner, learned Standing Counsel for the respondent nos. 1 to 3, Sri S.K. Singh, learned counsel for the respondent no. 5 and Sri G.P. Srivastava, learned counsel for the respondent no. 4.
The petitioner is the wife of late Jagdish Singh who is stated to have executed a Will in her favour in relation to the land in dispute. The said land was put to auction and the respondents 6 and 7 are the auction purchasers. The auction proceedings were challenged under the provisions of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 and ultimately the matter travelled up to the Board of Revenue. The revision filed by the petitioner was allowed by the Board on the ground that the auction proceedings were not in accordance with the Rules prescribed and the same being faulty, the auction was set aside with a further direction to the Collector to take steps for realization of the amount in accordance with law. The Board of Revenue also issued a direction that it will be open to the petitioner to clear all the dues within a month and in the event, the petitioner fails to do so, fresh auction proceedings can be resorted to. The auction purchasers were found entitled to the refund of the amount.
This order of the Board of Revenue dated 16.02.2006 came to be challenged by the auction purchasers in Writ Petition No. 17991 of 2006 (Ashok Kumar Singh and others Vs. State of U.P. and others). The petitioner was arrayed as respondent therein and shall file a counter affidavit contesting the stand of the auction purchasers. The auction purchasers abandoned their said pursuit and the writ petition was dismissed as not pressed with liberty to the auction purchasers to receive their amount as directed by the Board of Revenue. Consequently, the auction purchasers abandoned their claim and the writ petition was dismissed upholding the order of the Board of Revenue dated 16.02.2006.
The petitioner, who was the respondent in the previous writ petition, has now filed the present writ petition questioning the correctness of the same order of the Board of Revenue dated 16.02.2006, insofar as, as it directs for holding a fresh auction with a further prayer that the possession of the land in dispute be handed over back to the petitioner.
This petition was reported to be barred by laches by 05 years and 112 days for which the petitioner has come up with an explanation that it was on account of the pendency of the previous writ petition, wherein an order of status quo had been passed, and that the present delay has occurred which is bona fide, and therefore, the petition should not be dismissed on the ground of laches.
Sri K. Ajit, learned counsel for the petitioner has relied on two decisions to advance his submissions namely AIR 1958 Alld 158 (S. Barrow Vs. State of U.P. and another) and 1970 AIR (SC) 898 (Tilokchand and Motichand Vs. H.B. Munshi). He contends that the question of delay will depend on the facts of each case as held in these decisions and there being no wilful and deliberate default on the part of the petitioner, the laches deserve to be condoned and the direction of the Board of Revenue to hold fresh auction should be set aside. He submits that laches can also be condoned in view of the fact that there is no prescription of any third party rights and as such the question of limitation would not come in way. He, therefore, contends that the petition be entertained and the interest of the petitioner be protected to the extent as prayed for.
Having heard learned counsel for the parties, the petitioner, if, aggrieved by the direction of the Board of Revenue to hold a fresh auction ought to have filed a separate writ petition or challenge the same before the appropriate forum. The petitioner on her own volition did not choose to challenge the order dated 16.02.2006 to the extent she was affected.
The contention of Sri K. Ajit that this action was not deliberate cannot be accepted on the face of it, inasmuch as, if the petitioner was aggrieved by any direction issued by the Board of Revenue, she voluntarily did not choose to challenge the same which could have been done by filing a separate writ petition. This default is directly of the petitioner either on her own count or on account of any lack of proper legal advice. It is only after the writ petition, filed by the auction purchasers, has been dismissed that the petitioner has now come up to gain a ground further without there being any valid explanation for the laches.
The filing of a counter affidavit in the previous writ petition will not absolve the obligation of the petitioner to contest her own cause. She could have filed her own petition but she could not have contested the writ petition filed by the auction purchasers by raising a plea in the nature of a cross objection or a counter claim. As a matter of fact, no such plea appears to have been raised in the earlier writ petition.
The contention raised is that no third party rights have prescribed so as to create any impediment, which cannot be accepted for the simple reason that if the order of the Board of Revenue is conditional then the rights of the petitioner could have revived provided she had complied with the direction of the Board of Revenue even after the dismissal of the writ petition on 27.07.2011. The Board of Revenue had granted a months time to clear all the dues and even if, it is presumed that there was an order of status quo of this Court in the previous writ petition, even that order vanished on 27.07.2011. The petitioner did not make any attempt to make the deposit within one month after the dismissal of the writ petition and there is no averment in the present writ petition about having taken any steps.
In such a situation, the status of the property being mortgaged in favour of the Bank continues to subsist and the petitioner cannot be said to have acquired the rights over the property to the extent as submitted by Sri K. Ajit. At the best, the auction purchasers have no right to retain the land but so far as, the petitioner is concerned, she would be entitled only if the dues of the Bank had been cleared off.
So far as, the decisions relied on by the petitioner are concerned, on the facts that arise in the present case, the said decisions do not come to the aid of the petitioner. The writ petition therefore being heavily barred by laches without any valid explanation for the same and for the reasons abovementioned is dismissed.
Order Date :- 13.9.2011 Akv