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Data Ram Sharma v/s Board of Revenue & Others

    Misc. Single No. 729 of 2014

    Decided On, 17 February 2014

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE ANJANI KUMAR MISHRA

    For the Appellant: Ratan Kumar Sharma, Advocate. For the Respondents: Nishant Shukla, Vinay Shanker, Advocate.



Judgment Text

Anjani Kumar Mishra, J.

1. Heard Sri R.K. Sharma, learned Counsel for the petitioner, Shri Nishant Shukla, who has filed caveat on behalf of the opposite party No. 8 and, Shri Vinay Sankar, learned Counsel for the Allahabad Bank, respondent No. 8. This matter came for admission on 17.2.2014 when the matter was adjourned for 17.2.2014 (i.e. today) to enable the Counsel for the Bank to seek instructions in this matter.

2. Today, when the case was taken up Shri Vinay Shankar has stated that he has been instructed that the account wherein recovery proceedings were initiated against the petitioner for nonpayment of an agricultural loan has been closed. No records are avail

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able regarding the said account and it appears that consequent to the recovery proceedings and subject to whatever was recovered, the account had been closed and if any balance remained unpaid the same must have been written off. He further states that in view of the instructions received, the respondent-bank is no longer interested in contesting this writ petition.

3. Learned Counsel for the petitioner states that the only contesting respondent in the writ petition is the respondent No. 8, Smt. Hind Kumari. She has purchased her land, subject matter of dispute in the instant writ petition, in the auction held in the recovery proceedings initiated for recovery of the agricultural loan advanced to the petitioner. The amount sought to be recovered was about Rs. 80,000/-. He further states that other private respondents, namely, 5, 6, 7 and 9 are only formal parties.

4. The learned Counsel for the respondent No. 8 on the contrary states that the respondent No. 9 is dead and the writ petition has been preferred against a dead person.

5. Be that as it may, in view of the orders proposed to be passed in this writ petition no notices are being issued to the aforesaid private respondents, namely, 5, 6, 7 and 9 as they are stated to be only formal parties. However, in case any of these respondents is aggrieved or prejudiced by the orders passed it will be open for them to file an application for recalling this order. Even respondent No. 8 is stated to be only a formal party and therefore his death will not result in abatement.

6. It is the admitted case of the petitioner that he obtained an agricultural loan from Allahabad Bank, Branch Lakhimpur, District Kheri for purchasing a tractor and mortgaged plot No. 358, area 3.48 acres to secure the aforesaid loan. The petitioner had half share in the said plot. The said mortgaged plot was auctioned on 15.3.1999 in favour of the opposite party No. 8 for a sum of Rs. 35,000/-. It is further stated that the petitioner came to know about this auction on 24.5.1999 and therefore on 27.5.1999 filed a sale objection under Rule 285-T of the U.P. Zamindari Abolition and Land Reforms Rules, 1952, along with an application for condonation of delay.

7. The sale objection aforesaid was filed alleging that the petitioner had no notice of auction proceedings as Form No. ZA-73-D and Form 74 were never served upon the petitioner There was non-compliance of Rules 281, 282 and 285-A of the Rules. The land in question having an area of 1.75 acres was auctioned for a very meagre sum of Rs. 35,000/- only, although its value at that point of time was at least Rs. 2,00,000/. The auction proceedings were further vitiated as no reserve price had been fixed and the auction sale was confirmed in complete disregard of Rule 285-A.

8. The Additional Commissioner Administration, Lucknow Division, Lucknow rejected the objection filed by the petitioner on the ground of delay, He further recorded a finding that there was no illegality in conducting the auction sale. The order aforesaid was challenged by means of a revision No. 35 of 2002-03 on the ground that the auction sale had been made without prior attachment of the land in dispute. The auction was held by the Nayab Tehsildar although it was the Collector alone who was competent to hold the auction and the same was wrongly confirmed by the Sub Divisional Officer, Lakhimpur and thus the entire auction proceedings were void.

9. Learned Counsel for the caveator has seriously contested the submissions made by the learned Counsel for the petitioner. He has submitted that the petitioner was all along aware about the auction sale and therefore his sale objection has rightly been dismissed on the ground of delay and there is no illegality in the impugned orders which refuse to extend the benefit of section 5 of the Limitation Act to the petitioner.

10. I have considered the submissions made by the learned Counsel for the parties and have perused the record. The two most important points that emerge from the submissions made by the learned Counsel for the parties as also the record are that the sale objection has been dismissed only on account of delay which cannot be said to be very substantial as the sale objection was belated by only about two months.

Secondly, the auction sale of 1.75 acres of land for sum of Rs. 35,000/- only appears to be for a very meagre amount.

11. The other objections raised by the petitioner in his objection prima facie appear to be very serious and if true will definitely vitiate the entire auction sale. However since these objections have not been considered on merits, I am not expressing any opinion regarding the same but in the facts and circumstances of the case I deem it fit to set aside the impugned orders whereby the sale objection filed by the petitioner, has been dismissed merely on the ground of delay. Since the delay is not inordinate, it would be proper and in the interest of justice that the sale objection be considered on the merits of the allegations made therein, subject to a deposit of Rs. 60,000/- being made by the petitioner before the respondent No. 2 within a period of three weeks from today i.e. on or before 10th March, 2014.

12. In case the deposit of a sum of Rs. 60,000/- is made by the petitioner to establish his bona fides within the stipulated time. The respondent No. 2 shall consider the sale objection on merits and decide the same after affording opportunity to the parties to adduce evidence and after hearing them. This exercise may be completed preferably within a period of six weeks from the date the requisite amount is deposited by the petitioner. It is further provided that the opposite party No. 2 shall ensure that no unnecessary adjournment is granted to either of the parties. In view of the discussion and subject to the directions as aforesaid the writ petition is allowed. The orders dated 29.11.2013 and 18.11.2002 passed by the opposite party Nos. 1 and 2 respectively are quashed and the respondent No. 2 is directed to dispose of the said objection of the petitioner on merits. The amount deposited by the petitioner shall abide the final decision in the matter, on merits.

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