Dileep Kumar Roy vs State of Uttarakhand and others

Hon''ble Tarun Agarwala, J.—Heard Shri C.K. Sharma, the learned counsel for the petitioner and Shri Sudhir Kumar, Brief Holder for respondent Nos. 1 and 2, Shri D.S. Patni, the learned counsel for respondent No. 3.

Delay condonation application No.9722 of 2011 is allowed. Delay in filing restoration application is condoned. Cause shown is sufficient. The restoration application No.687 of 2011 is allowed. Order dated 17.09.2010 is recalled and the writ petition is restored to its original number.

The petitioner is a tenure holder and has questioned the order dated 30th January, 1999 passed by the Additional Commissioner by which the objection of the petitioner for setting aside the auction as well as the auction sale dated 21st August, 1997 was rejected. The learned counsel has also made an oral prayer for the quashing of the order confirming the auction sale by the S.D.O. by its order dated 26/09/1997 as well as the sale certificate dated 07/11/1997 issued there after.

The short contention raised by the learned counsel for the petitioner is, that the sale confirmation could not have been confirmed by the S.D.O. as no such power was delegated to him and that the Commissioner alone is authorised to confirm the sale u/S 174 of the U.P. Land Revenue Act. For facility, Section 174 of the Land Revenue Act is quoted hereunder:-

Order confirming or setting aside sale. - On the expiration of thirty days from the date of the sale, if no such application as is mentioned in the Section 172 or 173 has been made, or if such application has been made and rejected, the Commissioner shall pass an order confirming the sale;

and, if such application u/s 173 is made and allowed, the Commissioner shall pass an order setting aside the sale.

Every order under this section shall be final.

From a perusal of the aforesaid, it is clear that it is the Commissioner alone who has the power to confirm the sale. In the light of the aforesaid, the order of the S.D.O. dated 26/09/1997 cannot be sustained and quashed on this ground. The sale certificate dated 07/11/1997 issued in pursuance of the aforesaid order is also quashed. The order of the Commissioner dated 30th January, 1999 rejecting the application of the petitioner on the ground of delay is also quashed since the Court is of the opinion that there was no unreasonable delay. This Court is not going into the veracity of the auction sale dated 21/08/1997 and, it would be open to the petitioner to question the veracity on this sale before the appropriate authority.

In the light of the aforesaid, the writ petition is allowed partly and the matter is remitted to the Commissioner to consider the question of confirmation of sale or otherwise as provided u/S 174 of the Land Revenue Act. The same would be decided within six months from the date of the production of a certified copy of the order after hearing all parties concerned.