Madhu Singh vs State of U.P.and Others

R. K. Mahajan, J.—Smt. Madhu Singh, wife of late Ambarish Singh, resident of Prem Nagar, Bareilly, challenges the notice of auction dated 22111995 contained in Annexure 1 to this petition. She further prays for restraining the Tehsildar, Faridpur, district Bareilly (respondent No. 2) and Regional Transport Officer, Bareilly ''(respondent No. 4) from selling petitioner''s bus No. URW 411 by auction to be held on 611996.

Short facts leading to this petition are as under :

(i) Late Ambarish Singh, husband of the petitionerSmt. Madhu Singh, took a loan amounting to Rs. 18, 525 from Bank of Baroda (respondent No. 3) in the year 1985 for purchasing an oil expeller which was installed in his village Richa where his agricultural landed property situate. He died in the year 1986 and the total amount which he had borrowed could not be repaid to the Bank.

(ii) After the death of Ambarish Singh, petitioner Madhu Singh''s relations became strained with her fatherinlaw Ahibaran Singh, with the result Smt. Madhu Singh had to leave village Richa and to shift and settle down at Bareilly, as a result of which Ahibaran Singh, the fatherinlaw took over possession of the oil expeller and other property belonging to the petitioner, and thus she could not repay the loan to the bank.

(iii) It is stated that petitioner''s husband was also carrying on business of transport on the strength of a stage carriage permit granted in his favour by the Regional Transport Officer, Bareilly respondent No. 4. The income derived out of this bus was the only source of petitioner''s livelihood.

(iv) It is further stated that on 15111995 the petitioner''s said bus (URW 411) was seized by the respondents Collector, Bareilly and Tehsildar, Bareilly in order to auction the same for realisation of the loan borrowed and could not be paid by the petitioner''s husband from the Bank of Baroda.

(v) After seizure the bus, a notice for auction was served on the petitioner on 22111995 and the date of auction was fixed on 1121995, but it is stated that 1121995 was adjourned to 12121995 and again 12121995 was adjourned to 511996.

(vi) On coming to know about the auction etc. the petitioner contacted respondent No. 2 Teshildar, Tehsil Faridpur, district Bareilly and submitted that she has neither received any citation nor any recovery certificate is issued by the Collector in respect of recovery of the said loan as arrears of land revenue, and on enquiry she also came to know that total recovery is for an amount of Rs. 54,000. It is also averred that she deposited Rs. 10,000 on 9121995 vide receipt contained in Annoxure2 and vide Annexure3 dated 11121995 a detailed representation to the Additional District Magistrate (Finance), Bareitly was made stating that she is further read to deposit Rs. 20,000 and for the balance amount she may be permitted to deposit in instalments of Rs. 5,000 per month, but the bus which is the only source of her livelihood may be released.

(vii) It is also averred that on receipt of the said representation, the Additional District Magistrate (Finance) directed the respondent No. 2 to grant time subject to petitioner''s depositing half of the amount. In compliance of the aforesaid direction, the petitioner further deposited Rs. 11,000 on 12121995 and Rs. 10,000 on 15121995 vide Annexure4 and 5 respectively to this petition. In this way, the petitioner deposited total Rs. 31,000, which is more than half of the total impugned recovery.

(viii) It is further submitted that in between the respondent No. 4 Regional Transport Officer, Bareilly intimated Tehsildar. Faridpur that an amount of Rs. 42,282 is due against the petitioner towards passenger tax, road tax against said bus No. URW 411, and therefore it was directed that the said bus may not be released to the petitioner until this amount as well is recovered from or paid by the petitioner. The petitioner, therefore, submitted that in respect of passenger tax, road tax, no notice for assessment proceeding was ever issued to her and as such recovery of the said amount by way of auctioning the bus, is completely without jurisdiction being against the provisions of U. P. Motor Gari (Yatri Kar) Adhiniyam.

(ix) On these facts this petition is filed seeking the aforesaid relief.

This petition was listed on 411996 and this Court hearing learned counsel for the parties directed that subject to petitioner''s depositing entire dues towards the bank loan (Bank of Baroda) within 15 days, recovery proceedings against the petitioner shall remain stayed and the petition was ordered to be listed on 2211996. But on 1011996 the petitioner moved an application praying for a direction to respondent No. 2 to restore possession of the bus in question to the petitioner after accepting the balance amount payable to the Bank of Baroda. In this application, it is submitted that the order of this Court dated 411996 was orally communicated to respondent No. 2 on 511996 at 10 a.m., whereupon the respondent No. 2 told the petitioner that though auction is fixed for 511996 but ho alongwith his staff would be busy in attending VIP''s (His Excellency Governor of U. P. and Railway Minister), therefore, the action will not take place. The petitioner, however, intimated the respondent No. 2 that certified copy of the order dated 411996 will be made available to him as soon as she receives it from Allahabad. This written application was submitted to respondent No. 2 vide Annexure 1 filed alongwith the application presented before this Court. It is also stated in this application that on the next day i.e. 611996 the petitioner when again contacted respondent No. 2 and produced certified copy of the order of the Court dated 411996 and tried to deposit the balance amount as directed by this Court, the respondent No. 2 refused to accept the same saying that action had already been taken place on 511996 and therefore he will accept nothing in this regard. It is submitted that the petitioner thereafter approached the Collector, Bareilly and moved an application requesting him that auction of the petitioner''s bus was illegal as the same was done in utter violation of the order dated 411996 passed by this Court. The application made to the Collector is also annexed to the application as Annoxure2. It is also stated that thereafter the Petitioner met the Regional Transport Officer, Bareilly on 811996 and apprised him with the order dated 411996 passed by this Court who assured her that the bus shall not be transferred on the name of any other person.

It is submitted that market value of the bus is more than Rs. 2.50,000 but the respondent No. 2 has auctioned it for a meager amount Rs. 90,000 only in favour of her fatherinlaw Ahibaran Singh son of Umrao Singh, resident of village Richa, district Bareilly.

On 1211996 Sri Sabhajeet Yadav, learned Standing Counsel representing the respondents, took notice on behalf of the respondents and undertook to file counteraffidavit within a week. The petition was therefore, directed to be listed on 1911996.

On 1911996 no counteraffidavit was filed. However, Sri K. R. Singh, learned counsel for the petitioner reiterated that in pursuance of the Court''s order dated 411996 the petitioner offered to deposit the entire amount but the respondent No. 2 for the reasons best known to him declined to accept the same and while proceeding with the auction, the bus was sold for a meager amount of Rs. 90,000 in favour of the petitioner''s fatherinlaw. Therefore, on 1911996 this Court again directed that subject to petitioner''s depositing the entire amount, as directed on 411996, the amount so offered by the petitioner shall be accepted and the bus in question shall be restored to the petitioner forthwith. It was also directed that respondentNo. 2 Surendra Vikram, Up Ziladhikari, Faridpur, should appear in person on 521996,and furnish his explanation, and the case was fixed for 521996.

On 521996 Surendra Vikram, Up Ziladhikari, Faridpur, appeared in person and filed his affidavit. In the opening paragraph of his affidavit, he tendered his unqualified apology in case this Court finds him at fault for any of his acts or omissions. It is also submitted by him that he had highest respect and regard for the Court and the order passed by the Court. However, controverting the facts as narrated by the petitioner, he submitted that a counteraffidavit was prepared on 1811996 alongwith an application for vacating the stay order dated 411996 but inadvertently the same could not be filed on 1911996 when the case was taken up. On merits he submitted that the vehicle in question was put to auction by the tehsil authorities on various dates in the month of December 1995, but some how or the other the auction was postponed with a view to enable the petitioner to repay the bank loan. Though on 26121995 the vehicle was put to auction again, but action was not confirmed as the bids were found too low. It is also submitted by him that 511996 was fixed as the next date for auction. He further submitted that on 511996 he remained busy in connection with the visit of his Excellancy Governor of U. P. and Railway Minister as per programme which is annexed as SCA1 to his affidavit. He next stated that the stay order dated 441996 passed by this Court, was for the first time brought to his notice on 611996 at 1005 a.m. by means of a typed application signed by the petitioner and presented on her behalf by one Anil Kumar Singh alias Annu. It is clarified that though date mentioned in the typed application is 511996 but it was not presented before him prior to 611996. He further denied to have received any communication in any form either from the petitioner or through any of her representative regarding the interim order dated 411996 passed by this Court. He also denied telephonic talk contending that he busy and looking after arrangements in connection with the visit of VIPs. He further denied that the auction took place on 611996. According to him, the auction was fixed on 511996 and the petitioner was fully aware of it. It is further submitted by him that after receiving the application dated 511996 on 611996, he immediately referred the matter to the Tehsildar, Faridpur with the instructions not to handover the vehicle to the auctionpurchaser in case it had not been done earlier, but the vehicle had already been released to the auction purchaser by the time the deponent''s instruction could reach the tehsil authorities. The vehicle was auctioned on 511996. He admits his presence at the time of auction in Tehsil headquarters but he assigns the reason that in connection with the meeting of Lekhpals and Collection Amins which was already fixed, he was present there and the said meeting was over by 5 p.m. and at that time, the Tehsildar brought the papers for approval of the auction. Since highest bid was for an amount of Rs. 90,000 in comparision to the next highest bid of Rs. 50,250, therefore, the deponent thought that Rs. 90,000 is adequate consideration and accordingly confirmed the said auction. Lastly, he submits that he acted in bona fide manner and in compliance to this Court''s order dated 1911996, the bus is restored to the petitioner''s possession on 2511996.

The petitioner has filed a second supplementary affidavit stating that she did submit the application on 511996 and the same bears signature of one Chandra Shekhar, who is steno to Up Ziladhikari (respondent No. 2). This application appears to have been presented at 1230 p.m. The original application is also placed before us by the respondents for our perusal.

Sri Surendra Vikram has also filed his second supplementary counteraffidavit on 1321996 and denying the statement made by the petitioner in her second supplementary affidavit, it is submitted that on enquiry with regard to presentation of the application on 511996 by the petitioner which is said to have been received by Chandra ShekharSteno, it is revealed that the steno has not received any application. Even endorsement of Chandra Shekhar has also been denied.

Another supplementary affidavit is also filed on behalf of the petitioner disclosing starting facts that through private negotiation sale of the bus was settled with Ahibaran Singh. This is also supported by the affidavit filed by Dinesh Singh on behalf of Ahibaran Singh. In paragraph 8 of this affidavit dated 2111996 it is stated that Ahibaran Singh deposited Rs. 25,000 in cash on 111996 and the rest 65,000 he deposited on 511996.

Thus, if statement of Dinesh Singh son of Ahibaran Singh is taken into consideration, it falsifies the stand taken by Sri Surendra Vikram, Up Ziladhikari that the auction proceedings have been conducted and finalised on 511996. Besides this, though it is denied that StenoChandra Shekhar has not received the application and has not made any endrosement thereon, but no affidavit of Chandra ShekharSteno was filed to deny the fact as stated by the petitioner. This all goes to show that the authorities have tried to give colour with the collusion of auctionpurchaser that the auction proceedings have been conducted in a legal and lawful manner.

Now coming to the merits of the case as to whether the auction proceedings have been conducted in the manner it was provided and in accordance with law, and the auction purchaser gets any right over the vehicle in question ?

No doubt, learned counsel appearing for the auctionpurchaser has submitted that once the bid is knocked down in favour of the auction purchaser, the sale becomes absolute and the same cannot be set aside on the ground of irregularity in conducting the sale. For this proposition, the learned counsel relied on Hiralal v. State of U. P., 1978 ALJ NOC 69.

The proposition of law as laid dowe in Hiralal''s (supra) has no two opinions that once bid is knocked down in respect of movable property it becomes absolute, but it has to be seen whether the sale has been done In accordance with the provisions of law. The specific case as set up by the respondent is that the sale has taken place on 511996, whereas the fact reveals otherwise that through private negotiation deal was settled and on 111996 an amount Rs. 25,000 was accepted and deposited on which date the authorities have not completed the sale, but after four days on 511996 when rest of the amount of Rs. 65,000 was paid, on that date it is shown that bid was knocked down and auction was complete, This indeed is not only an irregularity but such an illegality which gee''s to the root of the matter and makes the auction sales as non est, besides the fact that the sale proceedings had already been stayed by the order of this Court dated 411996. Therefore, Hiralal''s case CsuPra) �s �f no much avail to the facts of the instant case.

In Mulraj v. Murti Raghunathji Maharaj, AIR 1976 SC 1386, it has been held by the Apex Court that stay order operates the moment it is passed even though the executing court gets information subsequently. It is further stated that this does not mean that when the court gets knowledge of it, it is powerless to undo any possible injustice that might have been caused to the party in whose favour the stay order was passed.

Applying this dictum in the instant case, the stay order is passed on 411996 and the proceedings of sale have been completed on 511996 in the afternoon.

Whereas in the first hours of the day (511996) itself the petitioner has also brought to the notice of respondent No. 2 the fact about the order of stay dated 411996 passed by this Court by way of presenting an application which was received by Chandra Shekhar, Steno to respondent No. 2. This being so, the authorities should have stayed their hand rather than proceeding ahead in obliging Ahibaran Singh, with whom the deal was settled through private negotiation and on 111996 Rs. 25000 was accepted.

Thus, in view of the above discussion, this petition succeeds and is allowed with costs. The impugned auction proceedings are hereby set aside, we set aside the auction sale, therefore, recovery charges if recovered from the petitioner, shall be refunded to her. Counsel fee Rs. 2,000 if certified.