Allahabad High Court
Bhau Pratap Singh & Another vs Board Of Revenue, U.P. Lucknow And ... on 4 September, 2013
Author: Sabhajeet Yadav
Bench: Sabhajeet Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 9 A.F.R. Case :- MISC. SINGLE No. - 1287 of 2001 Petitioner :- Bhau Pratap Singh & Another Respondent :- Board Of Revenue, U.P. Lucknow And Others Counsel for Petitioner :- A.S.Chaudhary,P.V.Chaudhary,U.S.Sahai Counsel for Respondent :- C.S.C.,Deepak Seth,N.K.Seth,U.S. Sahai Hon'ble Sabhajeet Yadav,J.
Heard Sri P.V. Chaudhary, learned counsel for the petitioners and learned counsel representing for private respondents as well as learned Standing Counsel for the State.
2. By this petition, the petitioners have challenged the judgement and order dated 26.4.2001 passed by Board of Revenue-opposite party no.1 dismissing the revision of petitioners contained in Annexure-7 of the writ petition preferred against the judgement and order dated 25.7.1997 passed by the Commissioner, Lucknow Division, Lucknow-opposite party no.2 dismissing the objection of petitioners under Rule 285(1) of the U.P.Z.A. & L.R. Rules and auction dated 9.3.1992, contained in Annexures-5 and 3 respectively to the writ petition by seeking writ of certiorari for quashing the aforesaid orders.
3. The brief facts leading to the case are that the petitioner have taken loan amounting to Rs.75,000/- for purchasing a Tractor in the year 1985 from New Bank of India, Hardoi-opposite party no.4 and in lieu of loan advanced to them, they have mortgaged their Bhumidhari land situated in village Pat Kunwan, Pargana Sarah Dakshini, Tehsil and District Hardoi. The petitioner no.1 had also taken a loan amounting to Rs. 25,000/- under self employment scheme from the opposite party no.5. It is stated that on failure of repayment of loan amount in instalments the bank issued recovery certificate. In pursuant thereto the Tehsil Authorities proceeded to recover the amount by coercive method and auctioned the Tractor of the petitioners for a sum of Rs. 64,500/- on 28.8.1990. Thereafter Tehsil Authorities further proceeded to auction the land of petitioners and fixed some dates for the auction but no publicity as contemplated under Rules framed under the U.P.Z.A. & L.R. Act was done, therefore, no body appeared for bidding the property sought to be auctioned.
4. It is stated in para-5,6 and 7 of the writ petition that on 29.2.1992 the petitioner no.2 received a notice in ZA Form 74 from Collection Amin informing him that the land belonging to the petitioners will be auctioned on 9.3.1992 for recovery of Rs. 83,743=70 p.. On receipt of the information a sum of Rs. 13,200/- were paid by the petitioners on 8.3.1992. The demand receipt of which is also on record as Annexure-2 of the writ petition. Thereupon the assurance was given by the Tehsil Authorities that no auction will take place in near future and petitioners were also advised to deposit the balance amount as early as possible. In spite of assurance given to the petitioners on 9.3.1992 i.e. next day, petitioners land measuring 4.910 acre = 7 Bigha & 19 Biswa was auctioned for Rs. 82,000/- in favour of Babu Singh father of opposite parties no. 6 to 8.
5. In para-8 of the writ petition, it is stated that whole auction proceeding was a fake and farce exercise on the part of respondents which is evident by the receipt regarding Beat of Drum, contained in Annexure-3 of the writ petition, allegedly effected on 26.2.1992 for the proposed auction sale. A perusal of said receipt shows that the Beat of Drum was done in Pura Bahadur regarding the auction of land of Bhanu Pratap Singh-petitioner no.1, whereas the land in question is situated in village Pat Kunwan which is at a distance of about 4 K.M. from the Pura Bahadur. There was no sense of beating the drum in Para Bahadur. According to Rules regarding auction proceeding, it should have been done in village Pat Kunwan where the land in dispute were situated. It is also stated that said receipt of Kurk Amin dated 26.2.1992 does not disclose the description of land and time for auction sale. The detail particulars of witnesses who have signed the receipt has also not been given so as to fix their identity. Thus, the entire auction proceeding was a farce exercise undetaken by the Tehsil authorities to grab the land of petitioners. The auction sale was also held for very nominal amount of Rs. 82,000/- whereas the price of land is of several lacs and much more than the auction money.
6. In para-9 of the writ petition, it is further stated that from a perusal of Annexure-4 of the writ petition i.e. Minutes of auction proceeding, it indicates that the auction was fake and farce for the reason that only three persons from distant place have participated in the said auction proceeding. Two bidders namely Guru Dayal Singh son of Laxman R/o Behta Saghai of Hardoi, Babu Singh son of Puttu Singh R/o Behta Saghai. District Hardoi are residing at a distant place of about 20 K.M. away from the property in dispute, whereas Sri Hanuman Singh residing in a village at a distance of 12 K.M. away from the land auctioned. Thus, without proper publication their participation in the said auction indicates that the auction proceeding was fake and farce exercise.
7. In para-10 of the writ petition it is also stated that there is nothing on record to show that the provisions of Section 279(d) of U.P.Z.A & L.R. Act and Rules 273 and 273 (A) of the Z.A.L.R. Rules and Order XXI Rule 54 CPC were the least complied, which inter alia provides attachment of a holding in respect of which arrear of land revenue is due. It is specifically stated in para-15 of the writ petition that auction in question is also bad for following reasons:-
Rule 282 of U.P.Z.A. & L.R. Rules provides that proclamation for sale shall be in Z.A. Form 74, whereas Rule 283 provides that in proclamation for sale under Section 286 of U.P.Z.A. & L.R. Act the Collector shall state the estimated value of the property and Rule 285-A provides that auction shall be held after expiry of 30 days from the date on which proclamation under Section 282 was issued. In present case, the beat of drum allegedly took place on 26.2.1992 and auction took place on 9.3.1992 i.e. on the 11th day.
8. In para-16 of the writ petition it is stated that Z.A. Form 74, contained in Annexure-1 of the writ petition is also bad for following reasons:-
(i)The date of its issuance has not been shown any where on it.
(ii)No estimated value of the property has been worked out and shown in it.
(iii)It is without seal of the Sub Divisional Officer.
(iv)It does not state about the place of auction, i.e. the campus of Tahsil.
(v)The name of village where the land is situated, has also not been shown. It simply states that such and such plots shall be sold by auction on 9.3.1992 in Tahsil campus. Thus, Annexure no.1 can not be said to be proclamation for sale in accordance with Rules.
9.In para-19 of the writ petition it is stated that petitioners filed objection against the auction sale under Rule 285(1) of the Rules for setting aside the auction sale dated 9.3.1992, which was dismissed by Commissioner, Lucknow Division, Lucknow vide his order dated 25.7.1997, contained in Annexure-5 of the writ petition without any plausible reason. Aggrieved by said order the petitioner filed revision before Board of Revenue-Opposite party no.1, which too has been dismissed vide judgement and order dated 26.4.2001, contained in Annexure-7 of the writ petition.
10.For the grounds taken in writ petition referred herein before learned counsel for the petitioners has submitted that in given facts and circumstances of the case, the entire auction proceeding including the impugned orders passed by respondents are vitiated and not sustainable in the eye of law.
11. Whereas contrary to it learned Standing Counsel and counsel appearing for private respondents have contended that the auction proceeding was held in accordance with law and U.P.Z.A. & L.R. Rules that is why the Commissioner has rejected the objection of petitioners for setting aside the auction sale and order passed by Commissioner, Lucknow Division, Lucknow has been affirmed by the Board of Revenue by impugned order, thus writ petition is devoid of merit and liable to be dismissed. The further submissions of learned counsel for respondents are that the irregularities pointed out by the petitioners in auction proceeding are not such material irregularities by which the petitioners have sustainable substantial injury. Therefore, on this count also the auction proceeding cannot be held to be illegal on the ground of some material irregularities or mistake in publishing or conducting it. Accordingly the impugned orders passed by authorities cannot be liable to be interfered with by this Court.
12. Having considered the rival submissions of learned counsel for parties, the question arises for consideration as to whether the auction proceeding in question , wherein 4.910 acre = 7 Bigha 19 Bishwa agriculture holding of the petitioners was auctioned for an amount of Rs. 82,000/- only in favour of Babu Singh father of respondents no.6 to 8, was proper in accordance with law or not?
13. In order to examine this question it would be useful to refer atleast some provisions of U.P.Z.A. & L.R. Act and Rules framed thereunder, which have material bearing with the question in controversy involved in the case. In this connection, it is to be noted that manner and method for recovery of arrears of land revenue have been provided under section 279 of the U.P. Zamindari Abolition & Land Reforms Act, 1950, which inter alia provides for attachment and sale of moveable property including the produce and attachment, lease and sale of holding in respect of which the arrear is due and further attachment and sale of other immovable property of the defaulter.
14. Section 284 of the Act deals with the attachment, lease and sale of holding of defaulter, which provides that Collector may in addition to or instead of any other processes hereinbefore specified, either of his own motion or on the application of the Land Management Committee, attach the holding in respect of which an arrear is due. Section 286 of the Act provides procedure and power to proceed against the interest of defaulter in other immovable property, which provides that if any arrears of land revenue cannot be recovered by any of the process mentioned in clauses (a) to (e) of Section 279, the Collector may realize the same by attachment and sale of interest of defaulter in any other immovable property of the defaulter.
15. Rule 281 of U.P.Z.A. & L.R. Rules, 1952 deals with procedure and power of sale of immovable property which inter alia provides that process for sale of holding under section 284 and other immovable property under section 286 shall be issued by the Collector. Rule 281 (2-A) of the said Rules provides that in the case of sale of a holding the Collector shall auction the holding in lots of 1.26 Hectares (3.125 acres) to 5.04 Hectares (12.50 acres) after working out and announcing the land revenue and the estimated value of each lot. It should also be made clear that only those persons would bid in the auction, acquisition of land by whom would not contravene the provisions of Section 154.
16. For ready reference Rule 281 of the U.P.Z.A. &.L.R. Rules is quoted as under:
"281. Section 284.- {((1) Recourse can only be had to the sale of the holding under Section 284 when the process specified in clause (a), (b), (c) and (d) of Section 279 would be insufficient for the recovery of the arrear.
{(2) Process for sale of holding under Section 284 and of other immovable property under Section 286 shall be issued by the Collector.
(2-A)--In the case of sale of a holding the Collector shall auction the holding in lots of 1.26 hectares (3.125 acres) to 5.04 hectares (12.50 acres) after working out and announcing the land revenue and the estimated value of each lot.
It should also be made clear that only those persons would bid in the auction, acquisition of land by whom would not contravene the provisions of Section 154.} {(3) * * *}"
17. Rule 282 of said Rules provides that proclamation for sale shall be in Z.A. Form 74. Rule 283 provides that in proclamation for sale under section 286, the Collector shall state the amount of the annual demand and the estimated value of the property calculated in accordance with the rules in Chapter XV of the Revenue Manual. For ready reference the provisions of Rules 282 and 283 are quoted as under:
"282. Section 286.- The proclamation for sale shall be in Z.A. Form 74.
283. In proclamation for sale under Section 286, the Collector shall state the amount of the annual demand and the estimated value of the property calculated in accordance with the rules in Chapter XV of the Revenue Manual."
18. Rule 285-A provides the officer authorised and time frame for holding auction sale as under:
"285-A. Every sale under Sections 284 and 286 shall be made either by the Collector in person or by an Assistant Collector specially appointed by him in this behalf. No such sale shall take place on a Sunday or other gazetted holiday, or until after the expiration of at least thirty days from the date on which the proclamation under rule 282 was issued.
The Collector may from time to time postpone that sale."
19. Rules 285-H, 285-I, 285-J and 285-K deal with the grounds and procedure for setting aside the sale and confirmation of sale, as under:
"285-H. (1) Any person whose holding or other immovable property has been sold under the Act may, at any time within thirty days from the date of sale, apply to have the sale set aside on his depositing in the Collector's office--
(a) for payment to the purchaser, a sum equal to 5 per cent of the purchaser money; and
(b) for payment on account of the arrear, the amount specified in the proclamation in Z.A. Form 74 as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been paid on that account; and
(c) the costs of the sale.
On the making of such deposit, the Collector shall pass an order setting aside the sale:
Provided that if a person applied under Rule 258-I to set aside such sale he shall not be entitled to make an application under this rule.
(2) {* * * *}.
285-I. (i) At any time within thirty days from the date of the sale, application may be made to the Commissioner to set aside the sale on the ground of some material irregularity or mistake in publishing or conducting it; but no sale shall be set aside on such ground unless the applicant proves to the satisfaction of the Commissioner that he has sustained substantial injury by reason of such irregularity or mistake.
(ii) { }.
(iii) The order of the Commissioner passed under this rule shall be final.
285-J. On the expiration of thirty days from the date of the sale if no such application as is mentioned in Rule 285-H or Rule 285-I, has been made or if such application has been made and rejected by the Collector or the Commissioner, the Collector shall pass an order confirming the sale after satisfying himself that the purchase of land in question by the bidder would not be in contravention of the provisions of Section 154. Every order passed under this rule shall be final."
285-K. If no application under Rule 285-I is made within the time allowed therefor, all claims on the ground of irregularity or mistake in publishing or conducting the sale shall be barred:
Provided nothing contained in this rule shall bar the institution of a suit in the Civil Court for the purpose of setting aside a sale on the ground of fraud."
20. Before applying the aforesaid Rules in case in hand, it would be useful to refer some decisions of the Apex Court, having material bearing on the question in controversy in involved in the case, hereinafter.
21. In the case of Union Bank of India Vs. Official Liquidator, 2000 (5) SCC 274, the Apex Court has observed as under:-
"In auction-sale of the property of the company which is ordered to be wound up, the Company Court acts as a custodian for the interest of the Company and its creditors. It is the duty of the Company Court to satisfy itself as to reasonableness of price by disclosing valuation report to secured creditors of the company and other interested persons. It was further held that the Court should exercise judicial discretion to ensure that sale of property should fetch adequate price. For deciding what would be reasonable price, valuation report of an expert is essential. The Company Judge himself must apply his mind to the valuation report. The Court observed that the High Court did not interfere with the auction-sale on the ground of sympathy for the workers which was not proper. The auction-sale was, therefore, set aside by this Court and the Official Liquidator was directed to resell the property after obtaining fresh valuation report and after furnishing copy of such report to secured creditors."
22. In Divya Manufacturing Company (P) Ltd. and another Vs. Union of India and others, AIR 2000 SC 2346, the Apex Court held that in appropriate cases, even the confirmed sale can be set aside.
23. In Gajraj Jain v. State of Bihar and others, (2004) 7 SCC 151, the Apex Court held that in absence of valuation report and reserve price, the auction sale becomes only a pretence and if there is no proper mechanism and if the intending purchasers are not able to know the details of the assets or intemised valuation, the auction-sale cannot be said to be in accordance with law. If publicity and maximum participation is to be attained, all bidders must know the details of the assets and the valuation thereof.
24. In State of Uttar Pradesh and others Vs. Swadeshi Polytex Limited and others (2008) 12 SCC 596 the sale proclamation had been issued on 1.4.2005 without any valuation of properties and only the area of vacant land had been specified therein and it was this notice that had been served on the chowkidar on 21.4.2005 and publication had been made in newspaper on 22.4.2005.The auction was held on 2.5.2005. In backdrop of this case, it was found that there was clear violation of Rules 282 and 283 of U.P.Z.A. & L.R. Rules. The Apex Court further held that the question of valuation is of the utmost importance as it is designed to ensure the best price for the property and it is essential in this circumstance that wide publication and notice of the proposed sale should be given as per Rule 285-A of the Rules. The pertinent observations made by Apex Court in paras 31 and 37 of the aforesaid decision are quoted as under:-
31. Rule 283 provides for the estimated value of the property to be determined under the provisions contained in Chapter XV of the Revenue Manual. The said Chapter specifies the procedure for valuation of the property in terms of other similar properties. It is, however, clear from the record that the figure Rs.27 crores, the value of the property which is mentioned in the advertisement in Amar Ujala, appears to have picked up without any basis as it is not the case of UPSIDC that the property had been valued in accordance with the provisions of the Revenue Manual or by a valuer or expert in the field.
37. The question of valuation is to our mind of the utmost importance as it is designed to ensure the best price for the property and it is essential in this circumstance that wide publication and notice of the proposed sale should be given as per Rule 285-A which postulates a notice of 30 days between the date of issuance of the sale proclamation and the date of auction. It can hardly be overemphasised that the proper valuation of the property and wide publicity of the proposed auction is intimately linked with the price that the auction fetches. As already mentioned above, the auction had been held on 2.5.2005. The sale proclamation had been issued on 1.4.2005, and served on the chowkidar on 21.4.2005, the publication made in Amar Ujala on 22.4.2005 whereas Rule 285-A itself postulates a notice period of 30 days to be counted from the date of issuance of the sale proclamation. While dealing with a similar situation, this is what this Court had to say in S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar 2004 (7) SCC 166 (SCC 175-76, paras 17-18) " 17. We are of the view that the sale effected in favour of Respondent 6 cannot be sustained. It is axiomatic that the statutory powers vested in State financial corporation under the State Financial Corporations Act, must be exercised bona fide. The presumption that public officials will discharge their duties honestly and in accordance with the law may be rebutted by establishing circumstances which reasonably probabilise the abuse of that power. In such event it is for the officer concerned to explain the circumstances which are set up against him. If there is no credible explanation forthcoming the court can assume that the impugned action was improper. (See Pannalal Binjraj Vs. Union of India, AIR a p. 409) Doubtless some of the restrictions placed on State financial corporations exercising their powers under Section 29 of the State Financial Corporations Act, as prescribed in Mahesh Chandra Vs. U.P. Financial Corpn. are no longer in place in view of the subsequent decision in Haryana Financial Corpn. Vs. Jagdamba Oil Mills. However, in overruling the decision in Mahesh Chandra this Court has affirmed the view taken in SIPCOT v. Contromix (P) Ltd.1995 (4) SCC 595 and said that in the matter of sale under Section 29, State financial corporations must act in accordance with the statute and must not act unfairly i.e. unreasonably. If they do, their action can be called into question under Article 226. Reasonableness is to be tested against the dominant consideration to secure the best price for the property to be sold.
' 12. ...... This can be achieved only when there is maximum public participation in the process of sale and everybody has an opportunity of making an offer. Public auction after adequate publicity ensures participation of every person who is interested in purchasing the property and generally secures the best price.' (SIPCOT case, SCC p. 601, para 12)
18. Adequate publicity to ensure maximum participation of bidders in turn requires that fair and practical period of time must be given to purchasers to effectively participate in the sale. Unless the subject-matter of sale is of such a nature which requires immediate disposal, an opportunity must be given to the possible purchaser who is required to purchase the property on 'as-is-where-is basis' to inspect it and to give a considered offer with the necessary financial support to deposit the earnest money and pay the offered amount, if required."
We must, therefore, repel Mr Dwidedi's argument that as SPL had suffered not prejudice in the auction proceedings, the sale should not be interfered with.
25. Thus, on a close analysis of the aforesaid decisions it is clear that in Union Bank of India Vs. Official Liquidator (supra) the Apex Court has held that in auction sale of property of company which is ordered to be wound up, the Company Court acts as custodian for the interest of company and its creditors. It is the duty of the Company Court to satisfy itself as to reasonableness of price by disclosing valuation report to secured creditors of the company and other interested persons. The Court should exercise judicial discretion to ensure that sale of property should fetch adequate price. For deciding what would be reasonable price, valuation report of an expert is essential. In Gajraj Jain Vs. State of Bihar and others (supra) it was held that in absence of valuation report and reserved price the auction sale becomes only a pretence and if there is no proper mechanism and if intending purchasers are not able to know the details of the asset or itemised valuation, the auction sale cannot be said to be in accordance with law. If publicity and maximum participation is to be attained, all the bidders must know the details of asset and valuation thereof. In State of Uttar Pradesh and others Vs. Swadeshi Polytex Ltd. (supra) the Apex Court has held that the question of valuation is of utmost importance as it is designed to ensure the best price for the property and it is essential that wide publication and notice of proposed sale should be given as per Rules 285-A of the Rules. In SIPCOT vs. Contromix (P) Ltd. 1995 (4) SCC 595 it was held by the Apex Court that reasonableness is to be tested against dominant consideration to secure best price for the property to be sold. The Apex Court further held that this can be achieved only when there is maximum public participation in the process of sale and everybody has opportunity of making offer. Public auction after adequate publicity ensures participation of every person who is interested in purchasing the property and generally secures the best price. It was further observed that adequate publicity to ensure maximum participation of bidders in turn requires that fair and practical period of the time must be given to purchasers to effectively participate in the sale. Unless the subject matter of sale is of such a nature which requires immediate disposal, an opportunity must be given to the possible purchaser who is required to purchase the property on 'as-is-where-is basis' to inspect it and to give a considered offer with the necessary financial support to deposit the earnest money and pay the offered amount, if required.
26. At this juncture it would also be useful to refer a decision of Supreme Court rendered in Rakesh Kumar Goel and others Vs. Uttar Pradesh State Industrial Development Corporation Ltd. and others (2010) 8, SCC 263 wherein Apex Court has pointed out number of anomalies under the provisions of U.P.Z.A. & L.R. Act and Rules framed thereunder pertaining to the auction proceeding and it was observed that existing provisions of U.P.Z.A. & L.R. Act and Rules are out of date by three quarters of a century. Those were designed to deal with agricultural holdings in a rural area. Even for that purpose the provisions appear far from satisfactory. Now they have become completely deficient for dealing with landholdings and other immovable properties in highly urbanised and industrialised regions of the State. Therefore, the Apex Court expressed an urgent need to update the law either by framing fresh Act and Rules or by thoroughly amending the existing ones. The pertinent observations made by Apex Court in para 26, 27 and 28 of the aforesaid decision are quoted as under:-
" 26. It is, thus, to be seen that under the Rules the only mode for advertisement of auction-sale is by affixation of the sale proclamation at a conspicuous place in the village where the property is located and by beat of drum. There is no provision of advertisement in the newspapers or by any other means to spread the information about the proposed auction on a large scale. Form ZA 73 (under Rule 273) and Form ZA 73-D (under Rule 273-A) only provide any description of the type of the property and plot/house number and boundaries of the immovable property; Form 74 (Rule 282) does not provide any description of the type of property (e.g. agricultural, homestead, industrial, etc.) or type of rights (e.g. lease and its term or freehold, etc.).
27.There is no provision in the Act or the Rules for fixation of reserve price before the property is put up for auction-sale. We were, however, informed that the Collector of the district regularly notifies "circle rate" for different types of land and different locations. this circle rate is primarily used for computation of stamp duty for registration of document. We were informed that in 2007 instructions were given to confirm sale only above the market price. There is also no provision enabling the authorities to bar someone with a criminal record or against whom there are tax dues or government dues or any other kinds from taking part in the sale of land by the Government.
28. It is, thus, evident that the law under which the auction-sale proceedings were held was itself quite deficient. But the enumeration of the shortcomings and the lacunae in the provisions of an archaic law is not to say that the auction proceedings of the two plots were otherwise fair and proper and suffered from some irregularities only due to the flaws in the law. On the contrary, we have no doubt in our mind that auction-sale of the two plots was illegal, fraudulent and collusive and the appellants and their abettors in the Revenue Department of the State Government fully exploited the weaknesses of the law to their advantage. This would be evident as the facts of the case further unfold. "
27.Thus, on account of number of anomalies, shortcomings and deficiency under the provisions of U.P.Z.A. & L.R. Act and Rules framed thereunder in respect of provisions relating to auction sale of immovable property of defaulter, the land grabbers and manipulators are taking advantage of weakness of law. But for these reasons alone the auction proceeding held by respondents in instant case can not be held to be fair and proper and suffered from irregularities only due to flaw in law. On the contrary I have no doubt in mind that auction sale of the land in dispute was illegal, fraudulent and collusive and the father of respondent no. 6 to 8 in collusion with officials and officers of the Revenue Department of State Government has fully exploited the weakness of law to his advantage, which would be clear from the facts of the case hereinafter.
28.Rule 282 of the U.P.Z.A. & L.R. Rules provides that proclamation for sale under Section 286 of U.P.Z.A. & L.R. Act shall be made in Z.A. Form 74. Rule 283 of said Rules provides that in proclamation for sale under Section 286 of the U.P.Z.A. & L.R. Act, the Collector shall state the amount of annual demand and the estimated value of the property calculated in accordance with Rules in Chapter XV of the Revenue Manual. Rule 285-A further provides that no such sale shall take place until after expiration of at least thirty days from the date on which proclamation under Rule 282 was issued.
29.In instant case, it transpires from record that the date on which Z.A. Form 74 was issued as revealed from Annexure-1 of the writ petition, has not been shown in it. The name of village where the land is situated has also not been shown. Merely the name and address of defaulter has been shown and only plot numbers with area without mentioning the village to which the aforesaid plots belong have been mentioned. The demand of amount of Rs. 83,743.7 p. plus other charges has been shown in the said form fixing the date of auction for 9th March, 1992 but neither estimated value of land sought to be auctioned has been disclosed nor there is any material on record to show that before issuance of sale proclamation, the Collector has worked out the estimated value of land sought to be auctioned. In back of Z.A. Form 74 there appears report of Collection Amin dated 29.2.1992 which indicates that Z.A. Form 74 has been served upon Sri Vijay Pratap Singh, one of the petitioners in presence of two witnesses on 29.2.1992 but no particulars and address of aforesaid witnesses have been given so as to fix their identity. Thus, for the aforesaid reasons, in my opinion, sale proclamation was bad in law from very inception and can not be held to be proper, accordingly entire auction proceeding is liable to be vitiated on this ground alone.
30.Further from a perusal of Annexure-3 of the writ petition, which is receipt of Munadi, it is clear that on 26.2.1992 the publication was done by beating the drum in village Pura Bahadur Ki Bazar whereas according to case of petitioners the aforesaid Bazar is about 4 K.M. away from the village Pat Kunwan in which the land of petitioners sought to be auctioned is situated. Whereas under the rules the publicity of auction sale is required to be done by affixation of sale proclamation at a conspicuous place in the village where the property is located and by beating the drum. Thus, the aforesaid publication can not be held to be fair and proper in accordance with law.
31.In absence of adequate publicity of auction sale there could not be maximum participation of bidders on the basis of the land sought to be auctioned could fetch reasonable price as intending bidders are not able to know details of land or itemised valuation of land sought to be auctioned, as such auction sale cannot be said to be in accordance with law. If publicity and maximum participation is to be attained, all the bidders must know the details of asset and valuation thereof. As held by Apex Court in various decisions referred herein before that reasonableness of price is to be tested against the dominant consideration to secure best price for the property to be sold and this can be achieved only when there is maximum public participation in the process of sale and every body has opportunity of making offer. Public auction after adequate publicity ensures participation of every person who is interested in purchasing the property and generally secures the best price. Since huge land measuring 4.910 acre=7 Bigha 19 Biswa about 8 Bigha value of several lac rupees has been sold in the aforesaid auction proceeding for very meager amount of Rs. 82,000/-, as such in my opinion it has to be held that while publishing and conducting the said auction sale the authorities have committed such material irregularities and mistake due to which the petitioners have sustained substantial injury but the Revenue authorities below while confirming the auction sale and rejecting the revision filed by petitioners have not looked into the matter in correct prospective, therefore, the view taken by authorities concerned contrary to the view taken by this court can not be sustained. In my opinion, in view of legal position stated by Apex Court from time to time referred herein publicity of sale proclamation has direct nexus with the best price which the property may fetch in auction sale. In instant case as revealed from the record that in absence of wide publicity of sale proclamation sufficient number of willing purchaser could not come to participate in bid and only three bidders have participated in the auction sale, resulting which the land sought to be auctioned could not fetch reasonable price and property of several lacs rupees was sold only for Rs.82,000/-, due to which petitioners have sustained substantial injury by reason of such irregularity and mistake.
32.It is no doubt true that there is no provision in the Act or Rules for fixation of reserved price before property is put up for auction sale but Rule 283 provides that estimated value of property sought to be auctioned to be determined under the provisions contained in Chapter XV of the Revenue Manual. The said Chapter specifies the procedure for valuation of property in term of other similar properties. This exercise has to be undertaken by the Collector or Sub Divisional Officer before issuance of sale proclamation. In case valuation of property would have been done properly in that event it would have been possible that price of only small portion of the land would have satisfied the debt of the petitioners and their remaining mortgaged property would have been saved. The proper valuation of property and wide publicity of proposed auction is inter-linked with the price which the auction fetches, but in instant case, no such exercise was undertaken by the Collector or Sub Divisional Officer. The question of valuation of property sought to be auctioned is to my mind of the utmost importance as it designs to ensure the best price for the property and it is essential that wide publication and notice of proposed sale should be given as per Rule 285-A of U.P.Z.A. & L.R. Rules which postulates a notice of 30 days between the date of issuance of sale proclamation and the date of auction. But in instant case notice of sale proclamation was allegedly served upon one of the petitioners on 29.2.1992 and auction of land in dispute was held within 11 days on 9.3.1992, as such, in my opinion, the auction was held in utter violation of Rules 283 and 285-A of the U.P.Z.A. & L.R. Rules, therefore, can not be held to be fair and proper.
33.There is yet another reason for taking aforesaid view in the matter. From the perusal of order passed by Collector/Divisional Commissioner, Lucknow Division, Lucknow, it is clear that while confirming the auction sale the Commissioner did not record his satisfaction that said auction sale has not contravened the provisions of Section 154 of U.P.Z.A. & L.R. Act and no finding was recorded to the effect that after adding land purchased through auction sale by the father of respondents in the land earlier held by him would not exceed the area of 12.50 acre, as such the view taken by the Commissioner while confirming the sale is wholly erroneous and cannot be sustained in the eye of law in view of law laid down by Apex Court in Smt. Shanti Devi Vs. State of U.P. and others, AIR 1997 S.C. 3541.
34. The aforesaid view taken by me also find supports from the earlier decision rendered by this Court in Ram Bharosey Vs. State of U.P. 2013(119) RD 1. Thus in view of foregoing discussion, the auction of property in dispute suffers from vice of material irregularities in publishing and conducting the auction sale and accordingly cannot be sustained and the same is hereby quashed and for the same reason the orders dated 25.7.1992 passed by the Opposite party in dismissing the objection of the petitioner under Rule 285 (I) of the U.P. Z.A. & L.R. Rules, contained in annexure no. 5 and judgment and order dated 26.4.2001 passed by the U.P. Board of Revenue, Lucknow, dismissing the revision of the petitioners contained in annexure no. 7 of the writ petition are also hereby quashed.
35. Now the next question arises for consideration that in given facts and circumstances of the case, what relief can be given to the petitioners? In this connection, it is to be noted that on 5.7.2001, while entertaining the writ petition, this Court had been pleased to pass interim order to the effect that until further orders, in case the auction has not been confirmed the same shall not be confirmed and further proceedings in respect auction in question shall remain stayed. Therefore, in compliance of the aforesaid order, it can easily be assumed that the petitioners are still in possession over the land in dispute accordingly they should not be disturbed from their peaceful possession over the land in dispute.
36. At this juncture, it is to be noted that after the said auction proceedings, it might have been possible that the auction purchaser would have deposited the purchase money of the land in dispute and loan advanced to the petitioners would have been satisfied on account of so deposit made by the father of respondents no. 6 to 8. Therefore, the payment made by him in pursuance of the said auction proceeding towards purchase money cannot be forfeited and and a sum of Rs. 82000/- as deposited by the father of the respondents plus an amount not exceeding to 5% of the purchase money, may be refunded back to the auction purchasers in accordance with the provisions of Rule 285 (L) of the Rules which provides that whenever the sale of any holding or other immovable property is set aside under Rule 285 (H) or Rule 285(I) of the Rules, the purchaser shall be entitled to receive back his purchase money plus an amount not exceeding 5% of the purchase money as the Collector or Commissioner as the case may be , may determines. Thus, in view of the aforesaid provisions of Rule 285-H and 285(L) of the Rules, it would be appropriate to direct the petitioners to deposit in Collector's office for payment to the purchaser a sum equal to 5% of purchase money and for payment on account of arrears the amount specified in proclamation for sale in Z.A. Form-74, for recovery of which the sale was ordered minus any amount which was paid by the petitioner after issuance of such recovery certificate and or sale proclamation towards the loan advanced to them and cost of sale within a period of one months from the date of production of a certified copy of this order before the Collector concerned who thereupon pass an order for refunding of the amount according to the Rule 285 (L) of the Rules to the respondents no. 6 to 8 within another period of one month and refund the aforesaid amount by that time accordingly.
37. With the aforesaid directions and observation, the writ petition succeeds and is allowed.
Order Date :- 4.9.2013 LJ/-