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1997(8) Supreme 394
SUPREME COURT OF INDIA
(From Allahabad High Court)
S.C. Sen, M. Jagannadha Rao, JJ.
Smt. Shanti Devi -Appellant
versus
State of U.P. & Ors. -Respondents
Civil Appeal No. 6240 of 1997
(Arising out of SLP (C) No. 11252/1997)
Decided on 9-9-1997
Counsel for the Parties :
For the Appellant, R.K. Kapoor, P. Verma, S.K. Srivastava, B.R. Kapur, Anis Ahmed Khan, Advocates.
For the Respondents, Tripurari Ray, Advocate, for Mukul Mudgal, Advocate.
Held, any objection raised by the person whose property has been sold to the effect that the Collector has not, at the stage of confirmation applied his mind to the question whether after the revenue sale, the purchaser would be holding land in excess of Ac. 12.50, is not an objection relating to any irregularity or mistake in publishing or conducting the sale and hence it is not barred by Rule 285-K. The sale here was over on 25.2.1982. The confirmation order was passed on 2.8.1982. Rule 285-J read with Section 154(1) therefore raises an issue which relates to a factor which the Collector has to be satisfied about before passing an order of confirmation. In our view, Section 285-K does not bar this objection. (Para 13)
Further held that a statutory duty is cast on the Collector to keep Section 154 in mind at the stage of confirmation of sale. If it is an objection as to non application of mind to a provision statutorily relevant at the stage of confirmation, the objection cannot be treated as an objection relating to the irregularity or mistake at or before the stage of sale. That is why Rule 285-K will not come in the way. (Para 15)
No doubt, there is no definition of sale in Section 3 of the Act which deals with the meaning of several words. But, it has to be noticed that Rule 285-I requires the Collector to satisfy himself whether the purchase of land in question by the bidder would not be in contravention of the provisions of Section 154. Obviously, it is intended that those who purchase in revenue sales should not have a greater advantage over those who obtain property by transfers inter-vivos. In our view, therefore, the High Court was wrong in thinking that the provisions of Section 154 were not applicable to court sales. (Paras 18, 19)
The High Court therefore proceeded on the assumption that Section 154 did not apply to involuntary sales and it also thought that it was for the Gaon Sabha to intervene. It did not enter any finding regarding the satisfaction of the Assistant Collector as required by Rule 285-J. As stated earlier, even if the appellant s application before the Commissioner is to be treated as not maintainable, it is open to the appellant to challenge the order of Confirmation dated 2.8.82 on the ground of violation of the requirement of Section 154 and we can read the said order and quash it inasmuch as we are not dealing with irregularity or mistake in the proclamation or conduct of sale or with fraud in the conduct of sale. We are only dealing with an illegality arising out of the confirmation order passed under Section 285-J in not noticing Section 154(1) and this can be corrected directly in writ jurisdiction. (Para 23)
(ii) Constitution of India-Art. 136-Appeal-U.P. Zamindari Abolition and Land Reforms Act, 1950-Section 154(1)-Court Sale-Objection regarding contravention of-Non application of mind-Commissioner did not give any finding on this behalf-Whether matter must be remitted to confirmation authority to go into this question?-Held, on facts No-Appellant has deposited the amount as directed by this Court-She should be allowed to retain the property.
Held that this is not a case where, at this distance of time, we should remand the case to the Commissioner. There is no question of remitting the matter to the Assistant Collector who passed the confirmation order to go into this question. Having heard the counsel and taken noticed of the fact that the appellant has now deposited Rs. 1 lakh as directed by this Court and taking note of the fact that the Commissioner, irrespective of the points in issue, was also inclined to give a chance to the appellant to deposit the money, we feel that this is a fit case where instead of going into the question whether the sale was void in view of Section 166 which was introduced w.e.f. 3.6.81 - the sale should not be confirmed and that consequently the appellant who has been in possession during the proceedings throughout and who also obtained an order of status quo from this court on 16.6.97 should be allowed to retain the property. (Para 25)
JUDGMENT
M. Jagannadha Rao, J.-Leave granted.
2. The appellant filed objections before the Divisional Commissioner, Lucknow in regard to the sale of her agricultural land in an extent of 8.50 acres held on 25.2.1982 and confirmed on 2.8.1982 under the provisions of Section 279 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, (hereinafter called the Act). The Commissioner, by order dated 26.9.1983 dismissed the objections. The writ petition of the appellant questioning the same was dismissed by the High Court on 7.5.1997. This appeal arises out of the said order.
3. The sale was conducted for recovery of arrears of Bank loan in a sum of Rs. 11,619.73 (together with interest) due to the Central Bank of India, Branch Sitapur pursuant to a certificate for recovery issued under Section 11A of the U.P. Agricultural Credit Act, 1973. The revenue sale was for Rs. 13,000/-. The land was under mortgage to the Bank for a loan of Rs. 7,000/- obtained for purchase of a pump-set. The auction sale dated 25.2.1982 was confirmed by the Assistant Collector on 2.8.1982 after obtaining an affidavit from the purchaser that even after this purchase, the purchaser s holding remained below acres 12.50. During the pendency of this SLP, the appellant was directed to deposit a sum of Rs. one lakh by order dated 16.6.1997 and the same has been deposited in this Court. By another order dated 15.7.1997, the said amount has been directed to be invested in a short term deposit.
4. The Commissioner set out the appellant s objections and to the purchaser s plea but did not give findings on the various points except the one relating to service of notices of sale. He held that notices were issued to the appellant regarding attachment and sale, the sale was adjourned and in regard to the notice for sale on 25.2.1984 the same was refused by the appellant. He said that in the absence of objection to the sale within 30 days of sale, the sale had to be confirmed by the Assistant Collector and this was done on 2.8.1982. Though a contention, among others, was raised that if acres 8.50 are added to the existing holding of acres 5.00 held by the auction purchaser, his holding would exceed acres 12.50, as prescribed under Section 154(1) of the Act, no finding was given by the Commissioner on this question. He also said that before him, the objector was given a fresh opportunity on sympathetic grounds to pay debt but the same was not paid.
5. In the writ petition, the appellant raised all the objections that were raised before the Commissioner. The learned Judge held that notice of sale proceedings was given to the appellant, the same was not availed of, that in fact, the sale notice for 25.2.1982 was refused by the appellant and none was present on appellant s behalf at the auction. The High Court also noticed that the Commissioner gave a fresh opportunity to the appellant to pay the loan amount but the same was not availed of. So far as Section 154(1) of the Act is concerned, the High Court felt that in view of the decision of this Court in Kripa Shankar v. Consolidation1, even if the purchaser s holding would go in excess of acres 12.50, after the purchase, it would be for the Gaon Sabha to claim the excess from the purchaser and this was because of Section 163 of the Act permitting taking over of the excess by the Gaon Sabha. Such a provision showed that the sale in favour of a person whose holding would exceed acres 12.50 after the purchase was not void but was voidable at the instance of the Gaon Sabha who could take over possession under Section 163. In other words, the High Court assumed that Section 163 was in the statute book as on 25.2.1982 or 2.8.1982. This, as we shall show, is not correct. Reliance was also placed on Gaon Sabha v. Dy. Director of Consolidation, U.P. Lucknow2, by the High Court to say that restriction under Section 154 did not apply to involuntary sales and that the right of the State to acquire land in excess of acres 12.50 fro
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