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IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
Sangeeta Chandra, J.
Ram Palat Misra - Appellants
Vs.
Board of Revenue and Ors. - Respondent
Misc. Single No. 1186 of 1994
Decided On : 24-02-2020
U.P.Z.A. & L.R. Rules of 1952 – Rule 285 – Recovery Proceedings – Auction Sale – Court had passed two detailed orders one of which after recording the submissions of the learned counsel for the petitioner, had stayed the further recovery proceedings and clarified that auction sale that had already taken place shall not be confirmed and the petitioner's possession shall not be disturbed from the land in dispute nor the proceedings for arrest and detention of the petitioner shall take place until further orders. – This writ petition was dismissed as infructuous and thereafter, restored on an application made by the legal heirs of the petitioner. – After restoration of the writ petition, the interim order was revived. – The auction purchaser died in the meantime, and he was also substituted by his legal heirs and representatives. – Court while hearing the matter noticed that no counter affidavit was filed by the State-respondents, therefore, directed the State-respondents that counter affidavit be filed failing which the Collector, Sultanpur, would appear in person to assist this Court. – A Counter affidavit was filed in January, 2018. – An additional counter affidavit was also filed thereafter by the State-respondents. – Held, Standing Counsel for the State-respondents has pointed out from the affidavit filed by the State-respondents that the amount was tried to be returned to the respondent no. 4 and his legal heirs and representatives but they refused to take the same and therefore, it was deposited in the Treasury. – If that be so, no direction can be issued to the State-respondents to return the amount alongwith interest to the respondent no. 4 and his legal heirs and representatives. – It is a settled position in law that unless auction sale is confirmed no legal rent accrues on the date of auction. – Petitioner had submitted his objections under Rule 285 on the same day and there was a stay on the confirmation of the auction sale both at the Appellate Stage and at the Revisional stage and this stay continued by means of an interim order granted by this Court – Standing Counsel has also pointed out the Rule 285 and of the U.P.Z.A. & L.R. Rules of 1952 which says that in case, the sale of any holding or other immovable property is set aside the auction purchaser shall be entitled to receive back his purchase money plus an amount not exceeding 5% of the purchase money, as the Collector or the Commissioner, as the case may be, may determine. – It has been submitted by the Standing Counsel that no party shall be prejudiced by an order of the Court, therefore, the State-respondents cannot now be saddled with the responsibility of returning Rs. 70,000/- deposited by the respondent no. 4 alongwith interest thereon to the respondent no. 4, his legal heirs and representatives. – Legal heirs of the Respondent no. 4 shall be returned the purchase money alongwith amount as admissible under Rule 285 of the U.P.Z.A. & L.R. Rules, 1952 within a period of two months by the Collector. – Writ Petition Allowed
ORDER
Sangeeta Chandra, J.
1. Heard the learned counsel for the parties and perused the record.
2. This Court had passed two detailed orders one of which dated 06.05.1994 after recording the submissions of the learned counsel for the petitioner, had stayed the further recovery proceedings and clarified that auction sale that had already taken place on 14.08.1992, shall not be confirmed and the petitioner's possession shall not be disturbed from the land in dispute nor the proceedings for arrest and detention of the petitioner shall take place until further orders. This writ petition was dismissed as infructuous on 17.07.2014 and thereafter, restored on an application made by the legal heirs of the petitioner. After restoration of the writ petition on 13.07.2017, the interim order was revived. The auction purchaser died in the meantime, and he was also substituted by his legal heirs and representatives. This Court while hearing the matter on 27.11.2017 noticed that no counter affidavit was filed by the State-respondents, therefore, directed the State-respondents that counter affidavit be filed failing which the Collector, Sultanpur, would appear in person to assist this Court. A Counter affidavit was filed in January, 2018. An additional counter affidavit was also filed thereafter by the State-respondents. When this Court heard the matter again on 03.10.2018, had passed the following orders:-
"This Court as far as back on 06.05.1994 had directed the Collector to point out in writing the name of the institution in respect of whom or for whom the amount was being recovered from the petitioner within a period of three weeks, so that petitioner may implead that institution as party in these proceedings. The respondents were also directed to file counter affidavit indicating therein the nature of recovery and further indicating as to in respect of what amount or relating to which institution or bank, the recovery was being made. However, no such information has yet been furnished, though the matter has been pending before this Court 24 long years.
In these circumstances, list this case on 11.10.2018, on which date, Sub Divisional Officer/Tehsildar concerned shall be present before the Court along with entire record relating to the recovery and auction proceedings. The record to be produced under this order before the Court shall include all the relevant documents right from the sale certificate to further proceedings which might have been drawn by the revenue authorities."
3. When the case was taken up by this Court on 11.10.2018, it took notice of the fact that the State-respondents stated in their various affidavits that the files relating to the auction sale were not traceable in their office. This Court directed the petitioner to implead the Baroda Kshetriya Gramin Bank, Branch-Alipur Sarawan, Sultanpur through its Bank Manager as Respondent no. 5 and Central Bank of India, Branch Kadipur, Sultanpur through its Branch Manager as Respondent no. 6 respectively in this petition and also directed the Banks concerned to file their counter affidavits. A direction was also issued that the Commissioner shall ensure filing of affidavits explaining the efforts made by the parties for tracing the auction sale file.
4. The petitioner took steps twice for respondent no. 5 but none has appeared on their behalf, although there is a service report that the undelivered cover has not been returned back. Service shall be deemed sufficient on respondent no. 5. With respect to the notice served on Respondent no. 6 to which Shri Gopal Kumar Srivastava, Advocate, appeared and was given time to file counter affidavit. The counter affidavit has not been filed and he says that the Bank cannot file any counter affidavit because no details regarding auction sale are available. All records are weeded out after auction proceeding concluded on 14.08.1992.
5. Since the respondent no. 5, Baroda Kshetriya Gramin Bank, Branch-Alipur Sarawan, Sultanpur has refused to a
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