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1970 Supreme(All) 137
Allahbad High Court
R.S.PATHAK,R.L.GULATI
Maina Devi Khemka - Appellant
Versus
State of U.P. - Respondent
Decided On : 10/28/1970
Rajeshwari Pd. and Shitla Pd., for Petitioner; Ambika Pd. and Standing Counsel, for Respondents.
Headnote:
U.P. ZAMINDARI ABOLITION AND LAND REFORMS ACT - SECTION 286 - SALE OF PROPERTY FOR RECOVERY OF ARREARS - POWER OF COLLECTOR TO ORDER RESALE - CIRCUMSTANCES INDICATING COLLUSION AND FRAUD - DISCRETION OF COURT UNDER ARTICLE 226 OF THE CONSTITUTION.
Fact of the Case:
The petitioner, Smt. Maina Devi, participated in an auction sale conducted by the Sub-Divisional Officer for the recovery of arrears of sales tax. She emerged as the highest bidder and deposited the entire sale consideration within the stipulated time. However, the Sub-Divisional Officer, upon realizing that the property was sold for a significantly lower price than its actual value, recommended a resale to the Collector. The Collector accepted the recommendation and ordered a resale, which was upheld by the Commissioner and the State Government. The petitioner challenged the Collector's order through a writ petition under Article 226 of the Constitution.
Finding of the Court:
The Court held that the Collector had the authority to order a resale of the property under Section 286 of the U.P. Zamindari Abolition and Land Reforms Act. The Court interpreted Rule 285-A of the rules framed under the Act to mean that the Assistant Collector appointed to conduct the sale was merely performing a ministerial act and did not have the final authority to conclude the sale. The Court also found that the circumstances surrounding the sale, including the opposition to the resale by a partner of the defaulter firm and the existence of encumbrances on the property, raised suspicions of collusion and fraud.
Issues: 1. Whether the Collector had the authority to order a resale of the property after the Sub-Divisional Officer had closed the auction in favor of the petitioner? 2. Whether the circumstances surrounding the sale indicated collusion and fraud, disentitling the petitioner to equitable relief under Article 226 of the Constitution?
Ratio Decidendi: 1. The Court interpreted Section 286 of the U.P. Zamindari Abolition and Land Reforms Act and Rule 285-A of the rules framed under the Act to conclude that the Collector retained overall control over the sale process and had the authority to order a resale if necessary. 2. The Court found that the suspicious circumstances surrounding the sale, including the opposition to the resale by a partner of the defaulter firm and the existence of encumbrances on the property, suggested collusion and fraud. The Court held that the petitioner, as a party to the alleged collusion, was not entitled to equitable relief under Article 226 of the Constitution.
Final Decision: The Court dismissed the petitioner's writ petition with costs, upholding the Collector's order for the resale of the property.
PATHAK, J. :- I agree with my brother Gulati J. that the writ petition should be dismissed with costs. But I would prefer to base that decision on the circumstance that the petitioner has not come to Court with clean hands and is, therefore, not entitled to equity. The circumstances surrounding the case have already been set out by my learned brother, and I agree with him that they show that the parties acted in collusion with one another. That inference seems to me to be a reasonable one having regard to their conduct from the very beginning. The petitioner has prayed for an order in the nature of certiorari. It is settled law that certiorari lies in the discretion of the Court and issues ex debito justitiae. The party applying must not be guilty of conduct disentitling him to relief. On this consideration alone, I would refuse relief to the petitioner.
2. In the circumstances I do not consider it necessary to express any opinion on the question whether the Assistant Collector had power to direct a resale of the property.
3. The petition is dismissed with costs.
4. GULATI, J. :- This is a petition under Article 226 of the Constitution praying for a writ of certiorari.
5. The facts shortly stated are these. The firm M/s. Radha Krishna Shivdutta Rai was defaulter in respect of payment of sales tax and interest thereon amounting to Rs. 72,161.63. In recovery proceedings the property in dispute was attached and put to sale. The sale was conducted on April 8, 1968, by the Sub-Divisional Officer, Varanasi, respondent No. 4. The petitioner Smt. Maina Devi gave the highest bid of Rs. 10,000/-and the auction was closed in her favour. She deposited Rs. 2,500/-, one fourth of the sale price, soon after the close of the auction and the balance on April 20, 1968. In the meantime the respondent No. 4 being of the opinion that a valuable property worth about rupees two lacs had been sold for Rs. 10,000/- only because of want of proper publicity sent a report to the Collector on April 10, 1968, with a recommendation that the property should be ordered to be resold after proper publicity through a local newspaper. The Collector accepted the recommendation and passed an order on April 11, 1968, for the resale of the property. Sri Mahabir Prasad Gupta, respondent No. 9, who is one of the partners of the defaulter firm, felt aggrieved by the order of the Collector and appealed to the Commissioner who set aside the order with a direction to the Collector that the matter should be decided after hearing the parties concerned. The Collector then passed a fresh order directing the resale of the property on August 9, 1968. Against that order Sri Mahabir Prasad Gupta once again filed an appeal and another appeal was filed by the petitioner. Both these appeals were, however, dismissed on September 16, 1968, and on December 30, 1968. The petitioner then went up in revision before the State Government which was rejected by an order dated July 22, 1969. The petitioner has now filed this present petition under Article 226 of the Constitution.
6. The petitioner's contention is that the Sub-Divisional Officer having accepted the bid and she having deposited the entire sale consideration within the time allowed by the rules the Collector had no jurisdiction to order the resale of the property. This contention of the petitioner has been rejected throughout by the Collector, the Commissioner and the State Government.
7. Before the Collector the admitted case of the parties was that the matter was governed by the provisions of the Land Revenue Act, but before us it has been conceded by the parties that the matter is governed by the provisions of the U. P. Zamindari Abolition and Land Reforms Act. The short question is as to whether the Sub-Divisional Officer was the final authority in the sense that after he had closed the auction in favour of the petitioner, the Collector was not entitled to interfere and order the resale of the property.
8. Under the scheme
