Chhiman Singh vs State and Others

B.S. Verma, J.—Heard learned Counsel for the parties.

Rejoinder affidavit has been filed on behalf of the Petitioner, today in the Court. The same be taken on record.

By means of this writ petition, the Petitioner has sought following reliefs:

(a) Issue a writ, order or direction in the nature of certiorari quashing the auction dated 12.01.1988, and order dated 11.03.1988 and order dated 11.03.1988, confirming the auction and order dated 04.04.1989, passed by the Commissioner, Nainital (Annexure-VI) and order passed by Board of Revenue, U.P. at Lucknow dated 01.07.1989 AnnexureVIII.

(b) to issue any other writ, order or direction which this Hon''ble Court may deem fit and proper in the circumstances of the case.

(c) To award costs of this writ petition to the Petitioner.

According to the Petitioner, the Petitioner is a guarantor of the loan sanctioned in favour of one Chandra Pal. Recovery proceedings were initiated against the borrower as well as the guarantor, for default in payment. Thereafter, the land, owned by the guarantors was auctioned on 12.01.1988. To challenge auction proceedings, the Petitioner moved application u/s 285I of U.P. Zamindari and Land Reforms Rules, 1952, before the learned Commissioner. After hearing learned Counsel for the parties, learned Commissioner rejected the application/appeal on the sole ground that the Petitioner has not complied the provision of Section 285H of the Rules, before filing the application/appeal.

Learned Counsel for the Petitioner has contended that both the rules are independent to each other and Commissioner has committed manifest error of law in rejecting the application/appeal on the sole ground above.

Separate counter affidavits have been filed by the State as well as the auction purchaser in which it is stated that the writ petition is liable to be dismissed and the order passed by the Commissioner needs no interference and auction in dispute was made in accordance with rules.

I have heard learned Counsel for the parties and perused the material on record. Rule 285 H and Rule 285 I of the Rules are being reproduced below:

285H (1) 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 the sale set aside on his depositing in the Collector''s office-

(a) for payment to the purchaser, a sum equal to 5 per cent of the purchase money; and

(b) for payment on account of the arrear, the amount specified in the proclamation in Z.A. Form 74 as that for the recovery of which the sale was ordered, lees any amount which may, since the date of such proclamation of sale, have been paid on that account, and

(c) the costs of the sale.

On the making of such deposit, the Collector shall pass an order setting aside the sale:

Provided that if a person applies under Rule 285I to set aside such sale he shall not be entitled to make an application under this rule.

285I (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 injury by reason of such irregularity or mistake.

(ii) ...

(iii) The order of the Commissioner passed under this rule shall be final.

After perusal of Rule 285H and Rule 285I, it emerges out that the proceedings of both the rules are independent to each other and has no correlation. It is also clear that Rule 285I does not provide a precondition to comply Rule 285H of the Rules. Therefore, order of the Commissioner in compliance of Rule 285H is not mandatory condition before filing of application/appeal. Learned Commissioner has erred in law in holding that the provision of Rule 285H necessarily be complied prior to filing of application under Rule 285I of Rules.

Having heard learned Counsel for the parties and in the discussion made above in foregoing paragraphs, this Court is of the view that the petition deserves to be allowed. The writ petition is allowed. Order passed by Commissioner, is hereby set aside and the Commissioner is directed to decide the application/appeal of the Petitioner strictly on merit by a reasoned and speaking order as to whether the auction was made in accordance with law or not.