Allahabad High Court
Ram Sagar Alias Sagar vs State Of U.P. And 4 Others on 5 October, 2021
Equivalent citations: AIRONLINE 2021 ALL 3397
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 10 Case :- WRIT - C No. - 20880 of 2020 Petitioner :- Ram Sagar Alias Sagar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Babu Lal Ram,Jyoti Bhushan Counsel for Respondent :- C.S.C.,Bhupendra Kumar Tripathi Hon'ble Siddhartha Varma,J.
Brief facts of the case are that an advertisement with regard to auction of the pond over Plot No.353 situate at Village Daulatpur, Tehsil- Meh Nagar, Police Station- Meh Nagar, District- Azamgarh, was published in the newspaper on 24.07.2019. The auction took place on 28.08.2019 in which there were three bidders, namely, Dinesh, Rakesh and Ram Sagar (the petitioner). Dinesh made a bid of Rs.1,10,000/- per year; Rakesh made a bid of Rs.1,05,000/- per year and the petitioner Ram Sagar made a bid of Rs.12,000/- per year.
Admittedly, amongst the various bids, the bid of Rakesh was found to be the highest and, therefore, he was required to deposit 25 per cent of the bid amount. When the highest bidder Rakesh and the second highest bidder Dinesh did not deposit the amount, the petitioner claimed a right to get the allotment as he was the only bidder who was then available for getting the allotment. Thereafter, the petitioner was asked to deposit the amount as per the bid and on 24.10.2019, the petitioner also deposited Rs.1,20,000/- for a complete tenure of ten years as is clear from the receipt which is annexed as Annexure No.2 to the writ petition. Thereafter, it appears that various reports were called for by the Tehsildar and the Sub-Divisional Magistrate. The Revenue Inspector gave a report on 21.10.2019 that the petitioner was the only bidder available after Rakesh and Dinesh who had not deposited the required amounts as per their bids and therefore, the petitioner was entitled for the allotment. On the report of the Revenue Inspector, however the Tehsildar upon considering the various provisions of law wrote to the Sub-Divisional Magistrate that the auction could not be made in favour of the petitioner as the actual bidders i.e. Rakesh and Dinesh had failed to deposit the amount and, therefore, a re-sale had to take place. The Sub-Divisional Magistrate on 02.09.2020 again asked for a comment. In the meantime, the petitioner approached the High Court with a prayer that the Plot No.353 which contained the pond be settled in his favour as he was the only bidder available after the bidders Rakesh and Dinesh had left without depositing any money which they were required to deposit after making the bid.
Sri Ram Lakhan Deobanshi, learned Standing Counsel in reply referred to the contents of counter affidavit and supplementary counter affidavit and specially referred to the furd neelami dated 28.08.2019. From the furd neelami, he pointed out that there were three bidders Rakesh, Dinesh and Ram Sagar (the petitioner). He submitted that after Rakesh and Dinesh whose bids were higher than the petitioner Ram Sagar had failed to deposit the bid amount then under law, a fresh auction had to take place and allotment could not be done in favour of the petitioner. In support of his submission, learned Standing Counsel drew the attention of the Court to Rule 57 of the U.P. Revenue Code Rules, 2016 and therefore, for ready reference, the same is reproduced hereunder:
"57. Lease of smaller Tanks (Section 61). - (1) Where the area of a tank referred to in section 61(b) exceeds 0.5 acre but does not exceeds 5 acres, the Samiti shall let out the same for fishing purposes or for growing Singhara with the prior approval of the Sub-Divisional Officer in accordance with the following procedure.
(2) For the purposes of letting such tanks, a camp shall be organized at the Tahsil level, about which wide publicity shall be given by publishing the date, time and place of the camp in at least one Hindi newspaper having wide circulation in the area.
(3) The Chairman, the Secretary and an officer not below the rank of Naib Tahsildar shall be present at such camp meetings. If, more than one Gram Panchayats are involved, the Chairmen and Secretaries of all the Samitees concerned shall attend such meetings.
(4) With the help of the representative of the fishermen community, to be appointed by the Collector for each Tahsil, the Secretary shall prepare a list of eligible persons who may be allotted the tank under reference, in accordance with the order of preference specified in sub-rule (5).
(5) The eligibility list of prospective lessees shall be prepared in accordance with the following order of preference:-
(a) Fishermen residing in the concerned Gram Panchayat;
(b) Members of the S.C.,S.T., Other Backward Classes or persons of General category living below poverty line residing in the Gram Panchayat.
(c) Fishermen residing in the concerned Nyaya Panchayat Circle;
(d) Fishermen residing in the concerned Development Block :
Explanation. - For the purposes of this rule and Rule 58, the expression 'Fishermen' means any person belonging to the community of Kewat, Mallah, Nishad, Bind, Dheemar, Kashyap, Vatham, Raikwar, Manjhee, Godia, Kahar, Tureha or Turaha or any other person traditionally engaged in the fishing profession.
(6) The persons referred to in any of the preceding clause of sub-rule (5) shall be entitled to the lease of such tank to the exclusion of those specified in the succeeding clauses.
(7) If the list of eligible persons prepared under sub-rule (4) consists of more than one person, then an auction shall be held on the spot in which only those shall be allowed to participate whose names are included in such list. If there is only one person eligible for the lease aforesaid, the lease shall be granted on the annual rent of the amount fix by the State Government from time to time which shall not be less than Rs. 1000/- and shall not exceed Rs.2000/- per acre.
(8) The provisions of Sections 189 and 190 of the Code shall apply to every auction under this rule.
(9) When the amount of the highest bid has been deposited, the eligibility List, the Bid Sheet and a report about the deposit of the bid amount duly signed by the Chairman, Secretary and the revenue officer referred to in sub-rule (3) shall be forwarded to the Sub-Divisional Officer for his approval.
(10) If the Sub-Divisional Officer is satisfied that the decision to let the tank is in accordance with the provisions of these rules, he shall accord his approval and shall return the papers to the Samiti.
(11) If the Sub-Divisional Officer approves the proposal, the papers shall be returned to the Samiti and a Deed of Lease shall be executed in R.C. Form-15 which shall be registered under the Registration Act, 1908.
(12) Every such lease shall be executed for a period of five years and the same shall not be renewed or extended.
(13) The lessee may use the tank allotted to him for the purpose of fishing or producing other aquatic produce or vegetables.
(14) If during the period of lease, the lessee commits any breach of the terms and conditions of such lease, the Sub-Divisional Officer may cancel the lease after issuing a show cause notice to the lessee.
(15) During the period of lease the rights of the local residents to use the tank for purposes of washing clothes, watering the cattle, digging out earth for purposes of pottery or the likes shall remain undisturbed."
He further submitted that as per Rule 57(8) of the U.P. Revenue Code Rules, 2016, the provisions of Sections 189 and 190 of the U.P. Revenue Code, 2006 were applied to every auction. For ready reference, Sections 189 and 190 of the U.P. Revenue Code, 2006 are also being reproduced hereunder:-
"189. Deposit by purchaser and re-sale on default. - (1) The person declared to be the purchaser shall be required to deposit immediately twenty five percent of the amount of his bid, and in default of such deposit, the property shall be forthwith re-sold, and such person shall be liable for the expenses incurred on the first sale and any deficiency in price occurring on re-sale, and the same may be recovered from him by the Collector as if the same were an arrear of land revenue.
(2) A deposit under sub-section (1) may be made either in cash or by a demand draft (issued by a scheduled bank) or partly in cash and partly by such draft.
Explanation. - For the purposes of this section, the expression ''demand draft' includes a banker's cheque.
190. Deposit of purchase money. - The balance amount of the purchase money shall be paid by the purchaser on or before the fifteenth day from the date of the sale in the office of the Collector or at the district treasury or sub-treasury; and in case of default -
(a) the property shall be resold; and
(b) the deposit made under Section 189 shall be forfeited to the State Government."
Learned Standing Counsel relied upon the provisions of Section 189 of the U.P. Revenue Code, 2006 and also a judgement of this Court passed in Writ - C No.3997 of 2017 (Sanjay Prasad Vs. State of U.P. and Others) on 25.01.2017 and has submitted that if the bidder defaults in depositing 25 per cent of the bid amount then a re-auction/ re-sale had to take place and no such person who might be there in the auction list could claim any right of getting any allotment whatsoever. He, therefore, submitted that the petitioner's claim for allotment could not be sustained and the writ petition was liable to be dismissed.
Having heard the learned counsel for the petitioner, Sri Ram Lakhan Deobanshi, learned Standing Counsel and Sri Jyoti Srivastava, Advocate holding brief of Sri Bhupendra Kumar Tripathi, learned counsel for the Gaon Sabha and also after having gone through the relevant provisions of Rule 57 of the U.P. Revenue Code Rules, 2016 and Sections 189 and 190 of the U.P. Revenue Code, 2006, this Court is of the view that when as per the auction, the highest bidder Rakesh could not deposit the 25 per cent of the bid amount which was required to be deposited by him then there was no other option left with the authorities but to re-auction the pond. The petitioner definitely had no right to claim for getting allotment. However, the Court feels that the petitioner has been wronged in the sense that he had been directed to deposit the bid amount on 18.10.2019 which was also deposited by him on 24.10.2019. This amount, the Court definitely feels, is required to be returned to the petitioner with an interest of 12 per cent per annum.
The auction may now take place again by the 30th of November, 2021. It is further provided that the cost of re-auction as per Section 189 of the U.P. Revenue Code, 2006 shall be borne by the bidder Rakesh who had defaulted. The amount along with interest which had to be returned to the petitioner shall, however, be returned by the State Exchequer. The amount shall be reimbursed to the petitioner before the next auction takes place.
With these observations/directions, the writ petition is, accordingly, dismissed.
Order Date :- 5.10.2021 Siddhant