Allahabad High Court
Harish Chand Srivastava vs State Of U.P. Thru. Prin. Secy. Revenue, ... on 15 July, 2022
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 7 Case :- WRIT - B No. - 424 of 2022 Petitioner :- Harish Chand Srivastava Respondent :- State Of U.P. Thru. Prin. Secy. Revenue, Lko. And 7 Others Counsel for Petitioner :- Amrit Swaroop Gaur Counsel for Respondent :- C.S.C.,Arvind Kumar Dubey Hon'ble Abdul Moin,J.
Vakalatnama filed by Sri Arvind Kumar Dubey, Advocate, on behalf of respondent no.8 is taken on record.
Heard learned counsel for the petitioner, learned Standing Counsel for respondent nos. 1 to 6, and Sri Arvind Kumar Dubey, learned counsel for respondent no.8 while the notice for respondent no.7 has been accepted by Sri Ashok Kumar Singh, learned counsel.
With the consent of learned counsel for the parties, the matter is finally decided.
Instant petition has been filed praying for the following main reliefs:-
"(I) Issue a writ order or direction in the nature of certiorari quashing the impugned auction sale dated 05-05-2004 with regard to 1/3 share in Plot No. 300 of Khata No. 178 area 0.330 hect. situated at Vill. Sulhan Tara, Pargana and Tehsil Akbarpur Distt. Ambedkar Nagar and further may be pleased to quash the impugned judgment and order dated 13-04-2022 as passed in sale Revision No. 7721 of 2007-08 by Hon'ble Board of Revenue Lucknow and to pleased also to quash the impugned judgment and order dated 24-03-2008 as passed by opposite parties No. 3 i.e. the Commissioner in Sale Objection U/R 285 (i) of U.P.Z.A & L.R. Rules bearing sale objection Case No. 70 of 2004 titled as Harish Chand Vs. Smt. Prem Lata and others in the interest of justice.
(II) Issue writ order or direction in the nature of mandamus commanding the opposite parties not to confirm the sald certificate in respect of 1/3 share in Plot No. 300 of Khata No. 178 out of total area 0.991 hect. situated at Vill. Sulhan Tara, Pargana and Tehsil Akbarpur Distt. Ambedkar Nagar and further may be pleased to direct the opposite parties to maintain status quo with regard to the delivery of possession over the land in question during the pendency of the instant writ petition in the interest of justice."
The case set forth by the petitioner is that he had taken a loan from the Allahabad Bank in the year 1993. He could not re-pay the said loan on account of financial difficulties with the result that the Bank initiated recovery proceedings against the petitioner and in pursuance thereof a recovery certificate was issued. The proceedings were initiated under the provisions of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 'Act, 1950') and the Rules thereunder. An attachment order was issued on 07.02.2004, a copy of which has been filed as Annexure-8 to the writ petition. The said attachment order had been issued under Rule 273 of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as the Rules, 1952') in the prescribed form no.73. Subsequent thereto, a notice for auction was issued under Rule 282 of the Rules, 1952 in form no.74 (proclamation for sale). Copy of the said form is Annexure-13 to the writ petition. The said form itself indicates that a copy shall also be served on the borrower. The form was accompanied by a report of the Collection Amin along with signatures of two witnesses who are said to be Satish Chandra Srivastava and Smt. Prem Lata Srivastava. The property was also auctioned on 05.05.2004, a copy of which is Annexure-3 to the writ petition. After the auction, the petitioner filed his objection under Rule 285 (I) of the Rules, 1952 before the Commissioner, a copy of which is Annexure-15 to the writ petition. A specific plea was taken by the petitioner that at no stretch of time form 74 was ever served upon the petitioner. The Commissioner vide his order dated 24.03.2008, a copy of which is Annexure-2 to the petition, rejected the said objections on the ground that all along the petitioner was aware of the auction proceedings. Being aggrieved, the petitioner filed a revision under Section 219 of the U.P. Land Revenue Act, 1901 (hereinafter referred to as the 'Act, 1901'), which was rejected vide order dated 13.04.2022, a copy of which is Annexure-1 to the petition, and hence the instant petition.
Learned counsel for the petitioner argues that notice for auction which is to be issued in form 74 has to mandatorily comply with Rule 282 of the Rules, 1952 which itself stipulates that the proclamation for sale is to be in form 74. Form 74 categorically provides for service of notice on the borrower. It goes without saying that in case the borrower refuses to accept the same then the same could be affixed on the house of the borrower witnessed by two independent witnesses. Learned counsel for the petitioner reiterates that the proclamation for sale was never served upon the petitioner rather a report was given by the Collection Amin that the same has been refused and two 'interested 'witnesses' namely petitioner's brother Satish Chandra Srivastava and his wife Smt. Prem Lata Srivastava were indicated as witnesses. Incidentally, it is Prem Lata Srivastava who has purchased the said property and thus it is apparent that Smt. Prem Lata Srivastava was an interested witness along with her husband Satish Chandra Srivastava and consequently any such proceedings which have been initiated without service of a notice upon the petitioner and being witnessed by two interested witnesses are illegally sustainable in the eyes of law. Upon the objections being filed before the competent authority under Rule 285(I) of the Rules, 1952, the competent authority has also failed to consider the said aspect of the matter and has rejected the said objections and even the revision filed under Section 219 of the Act, 1901 has been rejected simply by reiterating the order passed by the learned Commissioner and by indicating that all along the petitioner was having the notice of the auction.
Learned counsel for the petitioner also argues that even if for the sake of argument it is accepted that the petitioner was having the notice of auction yet once the rules categorically provides for proclamation of sale to be notified to the borrower as such without any information to the petitioner and by allegedly affixing the notice on the property of the petitioner (although not admitting the same) being witnessed by two interested witnesses of which one was a purchaser of the property and other was her husband it would be deemed that the rules have not been followed.
Learned counsel for the petitioner has placed reliance on the judgment of the Apex Court in the case of Opto Circuit India Limited vs. Axis Bank and others - (2021) 6 SCC 707 to contend that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner alone and in no other manner.
Learned counsel for the petitioner also contends that against a loan of Rs.32,800/- that the petitioner had taken in the year 1993 he had deposited a sum of Rs.50,000/- on 25.03.2008 on the basis of a compromise entered into between the petitioner and the concerned bank and the bank had also issued a certificate on 15.11.2021, a copy of which has been filed as Annexure-20 to the petition, whereby it has been indicated that the loan account of the petitioner has been closed.
Placing reliance on the aforesaid, learned counsel for the petitioner contends that it is a case in which the petitioner has lost his valuable property on the basis of malicious action on the part of the respondent authorities and has also deposited the amount to the entire satisfaction of the bank and thus this is a case of double jeopardy.
On the other hand, Sri Arvind Kumar Dubey, learned counsel for respondent no.8, argues that from a perusal of the orders passed by the court below, it is apparent that the petitioner all along was having knowledge of the proceedings of auction and simply in order to linger on the proceedings, such objections were taken from time to time which have all been rejected and this Court while exercising power under Article 226 of the Constitution and there being specific findings of facts recorded by the courts below this Court may not interfere with the impugned orders.
Heard learned counsel for the parties and perused the records. From perusal of the records, it is apparent that for failure to repay a loan that had been taken by the petitioner from Allahabad Bank a recovery certificate had been issued and subsequent thereto the property of the petitioner had been attached on 07.02.2004. Thereafter, a proclamation for sale was also issued in form 74 as prescribed under the provisions of the Act, 1950 and Rules, 1952. Form itself, a copy of which has been filed as Annexure-13 to the petition, would indicate that it mandates the service upon the borrower. The form is accompanied by a report of the Collection Amin contending that as the petitioner has refused to accept form 74 as such the same has been pasted on his door in the presence of two witnesses. Incidentally, it is the two witnesses who appear to have played a malicious role in the matter inasmuch as the witnesses are indicated as Satish Chandra Srivastava and Smt. Prem Lata Srivastava. Coincidentally, Smt. Prem Lata Srivastava is the auction purchaser of the property in dispute. Thus, once the auction purchaser is herself the witness of proclamation for sale of the property of the petitioner and specific contention of the petitioner was that at no stretch of time he had ever received notice in form 74 as such the presence of Smt. Prem Lata Srivastava as witness duly accompanied by Satish Chandra Srivastava, her husband, itself becomes suspicious.
When these facts were pointed out by the petitioner by filing his application under Rule 285(I) of the Rules, 1952, through his application dated 19.05.2004, the learned court below did not consider the specific plea rather has proceeded to hold that as the petitioner was all along having information/knowledge of the auction as such these are the only dilatory tactics. The said order has also been affirmed by the Board of Revenue while dismissing the revision filed by the petitioner vide order dated 13.04.2022.
It is also settled proposition of law that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner alone and in no other manner. Thus, once the form 74 which pertains to proclamation for sale specifically provided service of notice on the borrower and, as already indicated above, the report of the Collection Amin indicated that the petitioner refused to accept the same rather the notice of proclamation for sale had been pasted on the door of the petitioner in the presence of two witnesses which, as already indicated above, cannot be considered to be independent witnesses as one of them has purchased the property in dispute as such this itself creates a suspicion of the proclamation for sale having been validly and properly served upon the petitioner.
Considering the aforesaid, the writ petition deserves to be allowed and is hereby allowed. The impugned order dated 13.04.2002 (Annexure-1) is set-aside. The matter is remanded to the Board of Revenue, U.P., Lucknow to consider the aforesaid aspects while deciding the revision filed by the petitioner. As the matter is said to be pending since 2008 as such it is provided that the Board of Revenue shall proceed to decide the revision after hearing the parties concerned in accordance with law within a period of six months from the date of receipt of a certified copy of this order.
Order Date :- 15.7.2022 A. Katiyar