Allahabad High Court
Munendra Bahadur Singh vs Special & Additional District & Session ... on 20 July, 2010
Author: Rajiv Sharma
Bench: Rajiv Sharma
1
Court No. 24
Writ Petition No. 484 (MS) of 1988
Munendra Bahadur Singh ... Petitioner
Versus
Special and Additional District
and Sessions Judge, Hardoi and others ... Opposite parties
AND
Writ Petition No. 1949 (MS) of 1988
Narendra Bahadur Singh Chauhan ... Petitioner
Versus
Special and Additional District
and Sessions Judge, Hardoi and others ... Opposite parties
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Hon'ble Rajiv Sharma, J.
As both the writ petitions are directed against the judgment and order dated 24.11.1987 passed by the Revisional Authority, they are taken-up together for common orders.
In nutshell, the case of the petitioners is that the opposite party no.5 which is a private limited company carries banking business under the licence and authority granted by the Reserve Bank of India. It also decides the matters dealing with sugar and doing coil business. The opposite party No.3 filed a Regular Suit No. 51 of 1980 against the opposite party No.5 and the said Suit was decreed for realiziation of money vide judgment and decree dated 8.9.1981. Being aggrieved, the opposite party No.5 filed an appeal challenging the quantum of interest and the Appellate Court reduced the quantum of interest which became final.
Thereafter, opposite party No.3 after obtaining non- encumbrance certificate applied for execution by attachment and sale of plot No. 1957 having an area of 3 bigha 14 biswas situate in village Chhatauni which was purchased by the opposite party No.5 from its previous tenure holders-bhumidhar Bal Krishna and others and the same was mutated in their names by the order 2 dated 16.7.1971. Whole plot No. 1857 is agricultural land and there were also trees over the said plot, which is situated within the agricultural area of the said village. According to the provisions of Section 14 (3) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, "land" (except in Sections 109, 143 and 144 and Chapter VII) means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes agriculture and poultry farming. Subsequently, the property of plot No.1957 was attached in the month of March, 1982. Thereafter, it was put to auction and in the said auction, the petitioner was declared as highest bidder. Therefore, he deposited 1/4th of the consideration at the place of auction and thereafter, deposited 3/4th within the next fifteen days.
While proceedings for auction were going on, opposite party No.4 filed an objection claiming that it has got first charge over the assets of opposite party No.5 and as such, the property may not be sold in execution of decree passed in favour of opposite party No.3 and the said objection was disposed of by the Executing Court with the observation that the property may be auctioned, but the amount would be initially paid to the opposite party No.4 and the remaining amount to the opposite party No.3. Against this order, the opposite party No.3 filed an appeal and in the said Appeal, the opposite party No.2 filed his objections under Section 151 of the Code of Civil Procedure saying the sale of plot in question was illegal. Since the opposite party No.2 is not a party to appeal, he has no right to raise objections. Therefore, the objections filed by the opposite party No.2 is not maintainable. While allowing the appeal by the Appellate Authority by the judgment and order dated 15.10.1986, it was remanded wherein it was observed that the claim of State Sugar Corporation may also be considered. After remand, the opposite party No.2 had again filed objections on 23.4.1987. As the opposite party No.2 is not entitled to file any such objection, the Civil Judge vide order dated 25.7.1987 rejected the said objections. Subsequently, the sale was confirmed by the Executing Court on 17.5.1986 and a sale certificate as provided under Order 21 Rule 94 of the Code of 3 Civil Procedure was issued to the petitioner and thereafter, the petitioner was put in possession over the property in question on 12.9.1987. Neither the opposite party No.5 nor opposite party No.2 has raised resistance regarding the issuance of sale certificate and delivery of possession to the petitioner.
Later on, a revision was filed by the opposite party No.2 against the judgment and order dated 25.7.1987 in which the petitioner was not impleaded and no grievance was raised against him for confirmation of the sale or possession of the property in question. During the course of hearing of revision, an application for impleading the petitioner was moved and the Revisional Authority without affording any opportunity to the decree holder, allowed the revision and set aside the sale certificate issue in favour of the petitioner by the judgment and order dated 24.11.1987. In compliance of the order dated 24.11.1987, the opposite party No.2 is threatening the petitioner to dispossess from the property in question.
The Revisional Court has observed in its judgment that the property in question comes within the term Scheduled Undertaking as defined in Clause (h) of Section 2 of U. P. Act No. 23 of 1971. For convenience, the provisions of the aforesaid Section are reproduced hereunder:-
"(vi) all lands (other than held or occupied for purposes of cultivation and grovelands) and buildings held or occupied for purposes of that factory (including buildings pertaining to any of the properties and assets here-in-above specified and guest-houses and residences of directors, managerial personnel, staff and workmen or of any other person as lease or licensee and any store houses, molasses tanks, roads, bridges, drains, culverts, tube-wells water storage or distribution system and other civil engineering works, including any leasehold interest therein;"
Petitioner's Counsel contends that the observation of Revisional Authority that the sugar cane centre is absolutely vague. Further, it also observed that there is building and two wells near the land in Suit. As the opposite party No.2 is not a company as defined in the Indian Companies Act and also as provided in U. P. Act No.23 of 1971, the objections and revision 4 filed by the opposite party No.2 are absolutely baseless and not maintainable. The property of opposite party No.5 could form part of Scheduled Undertaking which was being used for the sugar work and the property of opposite party No.5 could not form part of the Scheduled Undertaking. According to petitioner, there being specific provision of law for setting aside attachment and sale, the recourse to Section 151 of the Code of Civil Procedure could not be taken. Therefore, the Revisional Authority has exercised his jurisdiction which was not vested in it.
A counter-affidavit has been filed by the opposite party No.2, wherein it has been stated that the disputed land has always been shown as sugarcane purchasing centre and not for agricultural purpose as stated earlier. The Revisional Court has rightly observed that the disputed land falls within the term of Scheduled Undertaking as defined in the Act. It is also denied that the opposite party No.5 carried on three activities as alleged.
After hearing parties' Counsel and perusing the record, I am of the opinion that Revisional Authority has not recorded a categorical finding that the land in dispute is grove or cultivating land. At this stage, parties' Counsel submits that the matter may be remanded to the Revisional Authority for recording a specific finding, as stated above.
Accordingly, both the writ petitions are allowed and the impugned order dated 24.11.1987 is quashed. The matter is remanded to the Revisional Authority for recording a specific finding, as to whether the Kasra plot, which has been sold in pursuance of the decree, is grove or cultivating land, in view of the provisions of 285 (h) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act. Liberty is granted to the parties to lead their fresh evidence. As the matter is quite old and pertains to the year 1980, the Revisional Authority is directed to decide the Revision within a maximum period of six months from the date of presentation of a certified copy of this order.
Dt.20.7.2010 Lakshman/