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Smt. Maina Devi Khemka Vs. State of U.P., Revenue Dept. Lucknow Through Dy. Secretary and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2846 of 1969
Judge
Reported inAIR1971All241
ActsConstitution of India - Article 226; Contract Act - Sections 17; Tenancy Law; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Rules 285A and 286(2)
AppellantSmt. Maina Devi Khemka
RespondentState of U.P., Revenue Dept. Lucknow Through Dy. Secretary and ors.
Appellant AdvocateRajeshwari Pd. and ;Shitla Pd., Advs.
Respondent AdvocateAmbika Pd., Adv. and ;Standing Counsel
DispositionPetition dismissed
Excerpt:
.....to conduct the sale, the sale officer, on being satisfied of the payment shall stay the sale. ' this rule clearly shows that the person authorised under rule 285-a, who is no other than the assistant collector, merely conducts the sale. normally, the appellant should have felt happy because it would have meant a larger clearance of the government demand which was outstanding against him. i tried my best to ascertain from the appellant's counsel how the resale would affect his interests adversely, if a higher price were obtained. ' 14. these observations very clearly suggest that the commissioner suspected a foul play. to me it appears that it had been planned since long by the defaulting firm to so manoeuvre things as to put the property beyond the reach of its creditors in the..........to express any opinion on the question whether the assistant collector had power to direct a resale of the property.3. the petition is dismissed with costs.gulati, j. 4. this is apetition under article 226 of the constitution praying for a writ of certiorari.5. the facts shortly stated are these. the firm m/s. radha krishna shivdutta rai was defaulter in respect of payment of sales tax and interest thereon amounting to rs. 72.161.63. in recovery proceedings the property in dispute was attached and put to sale. the sale wag conducted on april 8, 1968, by the sub-divisional officer, varanasi, respondent no. 4. the petitioner smt. maina devi gave the highest bid of rs. 10,000/-and the auction was closed in her favour. she deposited rs. 2,500/-, one fourth of the sale price, soon after.....
Judgment:

Pathak, J.

1. I agree with my brother Gulati J. that the writ petition should be dismissed with costs. But I would prefer to base that decision on the circumstance that the petitioner has not come to Court with clean hands and is, therefore, not entitled to equity. The circumstances surrounding the case have already been set out by my learned brother, and I agree with him that they show that the parties acted in collusion with one another. That inference seems to me to be a reasonable one having regard to their conduct from the very beginning. The petitioner has prayed for an order in the nature of certiorari. It is settled law that certiorari lies in the discretion of the Court and issues ex debito justitiae. The party applying must not be guilty of conduct disentitling him to relief. On this consideration alone, I would refuse relief to the petitioner.

2. In the circumstances I do not consider it necessary to express any opinion on the question whether the Assistant Collector had power to direct a resale of the property.

3. The petition is dismissed with costs.

Gulati, J.

4. This is apetition under Article 226 of the Constitution praying for a writ of certiorari.

5. The facts shortly stated are these. The firm M/s. Radha Krishna Shivdutta Rai was defaulter in respect of payment of sales tax and interest thereon amounting to Rs. 72.161.63. In recovery proceedings the property in dispute was attached and put to sale. The sale wag conducted on April 8, 1968, by the Sub-Divisional Officer, Varanasi, respondent No. 4. The petitioner Smt. Maina Devi gave the highest bid of Rs. 10,000/-and the auction was closed in her favour. She deposited Rs. 2,500/-, one fourth of the sale price, soon after the close of the auction and the balance on April 20, 1968. In the meantime the respondent No. 4 being of the opinion that a valuable property worth about rupees two lacs had been sold for Rs. 10,000/- only because of want of proper publicity sent a report to the Collector on April 10, 1968, with a recommendation that the property should be ordered to be resold after proper publicity through a local newspaper. The Collector accepted the recommendation and passed an order on April 11, 1968, for the resale of the pro-perty. Sri Mahabir Prasad Gupta, respondent No. 9, who is one of the partners of the defaulter firm, felt aggrieved by the order of the Collector and appealed to the Commissioner who set aside the order with a direction to the Collector that the matter should be decidedafter hearing the parties concerned. The Collector then passed a fresh order directing the resale of the property on August 9, 1968. Against that order Sri Mahabir Prasad Gupta once again filed an appeal and another appeal was filed by the petitioner. Both these appeals were, however, dismissed on September 16, 1968, and on December 30, 1968. The petitioner then went up in revision before the State Government which was rejected by an order dated July 22, 1969- The petitioner has now filed this present petition under Article 226 of the Constitution.

6. The petitioner's contention is that the Sub-Divisional Officer having accepted the bid and she having deposited the entire sale consideration within the time allowed by the rules the Collector had no jurisdiction to order the resale of the property. This contention of the petitioner has been rejected throughout by the Collector, the Commissioner and the State Government.

7. Before the Collector the admitted case of the parties was that the matter was governed by the provisions of the Land Revenue Act, but before us it has been conceded by the parties that the matter is governed by the provisions of the U. P. Zamindari Abolition and Land Reforms Act. The short question is as to whether the Sub-Divisional Officer was the final authority in the sense that after he had closed the auction in favour of the petitioner, the Collector was not entitled to interfere and order the resale of the property.

8. Under the scheme of the U. P. Zamindari Abolition and Land Reforms Act the Collector is incharge of the realisation of the land revenue of a district. The exact provision with which we are concerned is Section 286 of the Act which reads as under :--

'286:-- If any arrears of land cannot be recovered by any of the processes mentioned in Clauses (a) to (e) of Section 279, the Collector may realize the same from the interest of defaulter in any other immovable property of the defaulter as if the said arrears were arrears of land revenue assessed on and due in respect of such other property.

(2) Sums of money recoverable as arrears of land revenue, but not due in respect of any specific land, may be recovered under this Section from any immovable property of the defaulter.'

It is Sub-section (2) of Section 286 with which we are directly concerned because the arrears sought to be recovered in this case were not arrears of land revenue but of sales tax. Such arrears, like the arrears of land revenue, are also to be realised by the Collector by attachment and sale of the defaulter's immovable property. Rules have beenframed under the Act. Rules 281 to 286 are the relevant rules. The precise rule with which we are concerned is Rule 285-A. That rule provides that every sale under Sections 284 and 286 shall be made either by the Collector in person or by an Assistant Collector specially appointed by him in this behalf. In the instant case admittedly the Sub-Divisional Officer was appointed by the Collector to conduct the sale. But a careful reading of the relevant rules shows that under Rule 285-A an Assistant Collector is appointed by the Collector merely to perform a ministerial act. He does not replace the Collector and it is the Collector who is the final authority to sanction or not to sanction a sale. Of course, it is not expressly so provided in the Act or the rules, but there is a strong indi-cation to that effect in the relevant rules. Rule 285-A itself is the first indication. At the end of that rule it is provided:

'The Collector may from time to tune postpone the sale'. If the Assistant Collector had been delegated all the powers of the Collector, he should have had the authority to postpone the sale from time to time as the necessity arose, but the fact that it is not the Assistant Collector conducting the sale who can postpone the sale but the same is done by the Collector, shows that overall control is retained by the Collector.

9. Another indication is to be found in the Proviso to Rule 285-B, which reads:

'Provided that where at any auction no bid is offered up to the amount of the arrears, for which the sale has been ordered, the Collector may bid up to the amount of such an arrear.'

Rule 285-B forbids an officer who has any duty to perform in connection with any such sale as also persons employed by or subordinate to him to bid for or acquire an interest in the property directly or indirectly. But an exception is made in the Proviso in favour of the Collector who can bid upto the amount of the arrears where the maximum bid offered is below that amount. Such a power has not been given to the Assistant Collector who conducts the sale and naturally in a case where the highest bid is below the amount of arrears, the Assistant Collector shall have to refer the matter to the Collector to enable him to offer the bid contemplated by the Proviso. If the intention was to delegate all the powers to the Assistant Collector he could have easily been authorised to offer a bid contemplated by the Proviso.

10. Rule 285-H is another relevant rule which provides that any person whose holding or other immovable property has been sold under the Act, may, at any time within thirty days from the date of sale, apply to have thesale set aside on his depositing in the Collector's office the amount of arrears plus a sum equal to 5 per cent, of the purchase money and the cost of the sale and on making such deposits the Collector shall pass an order setting aside the sale. This rule again shows that even though the sale may be conducted by an Assistant Collector, yet such a sale can be set aside by the Collector alone. Finally, it is the Collector who under Rule 285-M can put the person declared to be the purchaser into possession of the property and grant him a sale certificate. That being the situation, it cannot be said that the sale can be concluded in all respects by the Assistant Collector and the Collector can have no say whatsoever. In my opinion the course adopted by the Assistant Collector in referring the matter to the Collector was fully justified and the order passed by the Collector for the resale of the property was equally justified.

11. It is true, as already indicated above, that there is no express provision like the one found in the Code of Civil Procedure, where an auction sale is subject to the confirmation of the Court. But that omission is not very material. All that can be said is that the rules under the U. P. Zamindari Abolition and Land Reforms Act have not been framed meticulously. Although under Rule 285-A an Assistant Collector is authorised to 'make' a sale which may mean that he is authorised to conclude a binding contract of sale, but that does not appear to be true. In my opinion the word 'make' in the rule has been used in a loose sense and has no greater meaning than the word 'conduct'. This is clear from a reference to Rule 285-C which reads as below:

'If the defaulter pays the arrears in respect of which the land or other immovable property is to be sold, at any time before the day fixed for the sale, to the person authorised to collect the amount in arrears or to the person appointed under Rule 285-A to conduct the sale, the sale officer, on being satisfied of the payment shall stay the sale.'

This rule clearly shows that the person authorised under Rule 285-A, who is no other than the Assistant Collector, merely conducts the sale.

12. There is a vital difference between a sale conducted under the orders of a Court and a sale conducted by or through the Collector for the recovery of arrears of land revenue. The proceedings in the former case are judicial proceedings whereas the proceedings in the latter case are merely administrative upto a certain stage. This view finds full support from a decision of this Court in Sudama Prasad v. State of Uttar Pra-desh, 1968 RD 88 (All), where it washeld that a proceeding for the collection of land revenue is essentially of administrative nature even though it may assume the character of quasi judicial nature at the stage of the hearing before the Commissioner.

13. The second and the morestrong reason why I feel that this petition should be dismissed is that the circumstances surrounding the sale arehighly suspicious and give an impression as if the sale was collusive and wasintended to defraud the government ofits legitimate dues by putting a veryvaluable piece of the property out of thereach of the Government. The first suspicious circumstance is that it was Maha-bir Prasad, a partner of the defaulterfirm, who was strongly opposed to theresale of the property. He was the firstto object to the resale before the Collector and then in appeal before theCommissioner. Normally Mahabir Prasad would have been the last person toobject to the resale if there was a prospect of the property fetching a higherprice because in that event his liabilityto the Government would have been reduced to a greater extent. The Commissioner in his order dated 16-9-1968 passed on the appeal of Sri Mahabir Prasadhas noticed this extraordinary conducton the part of Mahabir Prasad. In secondparagraph of his judgment he has remarked:

'It seemed to me somewhat queer that the appellant was opposed to resale when the sale officer expected to obtain a higher bid at the resale. Normally, the appellant should have felt happy because it would have meant a larger clearance of the Government demand which was outstanding against him.'

Then in the same paragraph he goes on to observer

'I am also unable to share his concern that the time which would be taken on resale would cause him harm even if a higher price were obtained. I tried my best to ascertain from the appellant's counsel how the resale would affect his interests adversely, if a higher price were obtained. He was not able to satisfy me in this regard and it seemed to me that it was for some reasons other than what have been mentioned above that he was interested in the bid of Smt. Maina Devi being accepted and the house not being resold. He did not evidently seem interested in discharging his liability to the Government to the maximum extent possible.'

14. These observations very clearly suggest that the Commissioner suspected a foul play. Indeed I had the same reaction at the time of the hearing of the writ petition and although the exact relationship of the petitioner withthe defaulter firm is nowhere stated in the petition, but on a question being put to the counsel for the petitioner he had to concede that she is closely related to the partners of the firm.

15. The property is under two mortgages, one simple and the other usufructuary. Both the mortgages are in favour of the wife of Mahabir Prasad Gupta. Under the terms of the usufructuary mortgage the property was not redeemable before 26 years. To me it appears that it had been planned since long by the defaulting firm to so manoeuvre things as to put the property beyond the reach of its creditors In the circumstances I am not satisfied that the petitioner has come with clean hands.

16. The remedy under Article 226 of the Constitution is discretionary and this Court would not come to the aid of the petitioner on technical grounds where the Court feels that the whole matter is not a clean one and there is a possibility of the existence of collusion and fraud. In the first instance I do not find much substance in the technical pleas raised by the petitioner and secondly I would hesitate to interfere in an order of a purely administrative nature, unless principles of natural jus-tice have been violated, injustice is done to the parties and the order itself is patently without jurisdiction.

17. Before the Collector as also before the Commissioner it was contended on behalf of the petitioner that in view of the encumbrances on the property the petitioner would have to pay much more than Rs. 2,00,000/- before the property was redeemed. If that be the case, the petitioner should have no fear of the reauction, because the property is not likely to be sold at too high a price and the petitioner herself would have a chance to rebid for the same.

18. As to the legal objection, I find no violation of the principles of natural justice, nor do I find any patent illegality or want of jurisdiction in the order passed by the Collector for the resale of the property and eventually confirmed by the State on revision. At the most the point raised by the petitioner can be said to be of debatable nature. In my opinion this is not a fit case where this Court should exercise its discretion under Article 226 of the Constitution, in favour of the petitioner when the whole matter smacks of collusion and fraud. The petitioner may well have recourse to other remedies open to her under the law, if she is so advised, but she cannot expect interference from this Court in the circumstances obtaining in the present case.

19. For these reasons, I dismiss the petition with costs.

BY THE COURT

20. For the reasons given in our respective judgments, we dismiss this petition with costs.


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