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4.10. Despite the above, Respondent No. 2 proceeded with the auction as scheduled and passed an Order dated 21st February 2019 (the impugned Order) confrming the sale of the said Property in favour of Respondent Nos. 3 and 3A for a consideration of Rs. 1,66,40,000/-, without considering or disclosing the Petitioner's objections. Respondent No. 2 accepted twenty fve percent of the sale consideration from Respondent Nos. 3 and 3A and called upon them to pay the balance consideration within eight days from 21st February 2019. 4.11. The Petitioner thereafter made enquiries and discovered the information pertaining to the sale of the said Property as set out in the Petition. The Petitioner through its Advocates addressed a Letter dated 28 th February 2019 to Respondent Nos. 1 to 3A, once again stating its objections to the sale of the said Property and calling upon them not to act in furtherance of the same. 4.12. According to the Petitioner, the auction sale of the said Property has been conducted by Respondent Nos. 1 and 2 contrary to the provisions of the MLRC PA-Nitin Jagtap 10 / 58 WP-3417-2019-F.doc and the rules made thereunder. The Petitioner is a Mortgagee in respect of the said Property under a registered instrument. The same was brought to the notice of Respondent No. 2 vide a Letter of the Petitioner's advocate dated 21 st February 2019. That apart, the correspondence exchanged amongst the MLRC authorities demonstrates that Respondent No. 2 was made aware of the mortgage created in respect of the said Property prior to the auction sale. Despite the same, Respondent No. 2 confrmed the sale in favour of Respondent Nos. 3 and 3A. This was done without considering or disclosing the Petitioner's rights as a Mortgagee in respect of the said Property. Moreover, the same is contrary to the provisions of the MLRC. There is a diference between actual arrears of land revenue and amounts which are to be recovered in the same manner as arrears of land revenue. In the present case, the amounts payable by Respondent No. 4 to Respondent Nos. 10 to 15 under the Orders passed by the Respondent No. 9 are not actual arrears of land revenue but are recoverable in the same manner and under the same procedure as arrears of land revenue. Therefore, in so far as the said Property is concerned, the Petitioner would have a priority in view of its prior registered mortgage in respect of the same. None of this has been considered by Respondent Nos. 1 and 2 prior to conducting the auction sale of the said Property or whilst confrming the same in favour of Respondent Nos. 3 and 3A. The auction sale in favour of Respondent Nos. 3 and 3A is illegal, arbitrary, fraudulent and amounts to a colourable exercise of power. These are the principal grounds on which the Petitioner has fled the present Petition challenging the auction PA-Nitin Jagtap 11 / 58 WP-3417-2019-F.doc sale of the said Property in favour of the Respondent Nos. 3 and 3A. 4.13. The Petitioner has prayed for the following substantive reliefs in the Petition :

8.19. That a perusal of Section 169 of the MLRC demonstrates that there is a clear distinction drawn between actual arrears of land revenue, and monies other than land revenue, but which are recoverable in the same manner as land revenue. In the former case, the State Government shall have a paramount charge over the land in question and precedence over any mortgage in respect of the same. In the latter case, 1 MANU/WB/0007/1894 2 1964 SCC Online MP 45 3 (2016) 3 SCC 762 PA-Nitin Jagtap 18 / 58 WP-3417-2019-F.doc the State Government shall have priority over the land only as against unsecured claims, and not over secured creditors. Under Section 40 of RERA and Rule 3 of the aforesaid Rules, it is clear that the amounts of refund and interest which have been awarded by Respondent No. 9 in favour of Respondent Nos. 10 to 15 against Respondent No. 4 are not actual arrears of land revenue, but are only to be recovered in the same manner as arrears of land revenue. Hence the same fall under Section 169(2) and not Section 169(1) of the MLRC. In view of the fact that the Petitioner is a registered Mortgagee in respect of the said Property, its claim over the same shall have precedence over the State Government in view of Section 169(2) of the MLRC. 8.20. That the above submission is fortifed by the decisions of the Madhya Pradesh High Court in the case of State of Bank of Indore vs. Regional Provident Fund Commissioner, Indore & Ors. (supra) and Maulbax vs. Sardarmal & Anr.4, where it has been held that where monies are to be recovered in the same manner as an arrear of land revenue, the same does not amount to an arrear of land revenue which gives the State any precedence over other claims against the defaulter. 8.21. That the stand taken by Respondent No. 2 that the Government has frst charge over the said Property, is therefore incorrect and contrary to law. 8.22. That Respondent Nos. 1 and 2 conducted the auction sale of the said Property in gross violation of Sections 176(d), 181 and 194 of the MLRC.

The aforesaid Section makes a clear distinction between actual arrears of land revenue due on account of land, and amounts other than arrears of land revenue which are recoverable as arrears of land revenue under the MLRC. In the former case, the arrears of land revenue due on account of land, amount to a paramount charge on the land in question, which shall have precedence over all other debts. However, in the latter case, the claim of the State Government to monies recoverable as other than arrears of land revenue but in the same fashion, have priority only over unsecured claims and not over secured debts. Land revenue has been defned in Section 2(19) of the MLRC to mean, "all sums and payments, in money received or legally claimable by or PA-Nitin Jagtap 34 / 58 WP-3417-2019-F.doc on behalf of the State Government from any person on account of any land or interest in or right exercisable over land held by or vested in him, under whatever designation such sum may be payable and any cess or rate authorised by the State Government under the provisions of any law for the time being in force; and includes premium, rent, lease money, quit, rent, judi payable by a inamdar or any other payment provided under any Act, rule, contract or deed on account of any land;". Therefore, it is clear that land revenue means amounts payable to the State Government on account of land. In the present case, we are of the opinion that the amounts of compensation and interest which have been awarded by Respondent No. 9 against Respondent No. 4 and in favour of Respondent Nos. 10 to 15 cannot be said to be actual arrears of land revenue. They are not dues payable to the State Government which arise out of any particular land. They are not even claims of the State Government. They are dues payable by a promotor of a real estate project to the fat purchasers under orders passed under the provisions of RERA. The mode of recovery of such amounts is the same as if they were arrears of land revenue under the MLRC. Hence these amounts clearly cannot be governed by Section 169(1) of the MLRC. Therefore, the claims of Respondent Nos. 10 to 15 as awarded by Respondent No. 9 cannot have priority over the properties of Respondent No. 4 in derogation of the Petitioner's secured interest therein. Having held that the Petitioner is a secured creditor of Respondent No. 4 and a Mortgagee in respect of the said Property under the Debenture Trust Deed, we fnd that the Petitioner has priority in respect of the said Property over the claims of Respondent Nos. 10 to 15. In PA-Nitin Jagtap 35 / 58 WP-3417-2019-F.doc other words, the Petitioner is entitled to have its debts satisfed out of the said Property in priority over Respondent Nos. 10 to 15.

49. Since the dues payable by Respondent No. 4 to Respondent Nos. 10 to 15 are to be recovered in the same manner as arrears of land revenue, the provisions of Chapter XI of MLRC which provides for the manner of realization of land revenue, would be applicable.

50. Sections 181 and 182 of the MLRC, authorize the Collector to attach a defaulter's immovable property and take it under his management. The procedure for efecting sale can be found under Sections 192 and 193 of the MLRC. It is clear from these provisions that a proclamation of sale has to be issued, specifying the time and place of the sale. The proclamation is to be made by a specifc mode, i.e. customary mode by beat of drum at the place where the immovable property is situated. Moreover, under Section 193 of the MLRC, a written notice of the intended sale along with the time and place is to be afxed at the Ofces of the Collector and the PA-Nitin Jagtap 55 / 58 WP-3417-2019-F.doc Tehsildar of the relevant place. Every auction sale must be preceded by an order of attachment of said property. These provisions are mandatory. The Learned Counsel for Respondent Nos. 1 and 2 failed to show us that either due proclamation was issued or the said Property was attached prior to the auction sale being conducted.