Confirmed auction sales cannot be set aside for alleged inadequacy of price or lack of publicity without proof of fraud or substantial injury.

JUDGMENT :

IRSHAD ALI, J.

1. Heard Sri Mohd. Arif Khan, learned Senior Counsel for the petitioner assisted by Sri Mohd. Aslam Khan, learned counsel for the petitioner, Sri Manish Kumar Singh, learned counsel for legal heirs of respondent Nos.4 to 6 and Sri Devesh Mishra, learned Additional CSC for respondent-State.

2. By means of present writ petition the petitioner is challenging the order dated 29.03.2006 annexure 10 to the writ petition passed by respondent No.1 upholding the order dated 04.04.2001 annexure 9 to the writ petition passed by respondent No.2.

3. Factual matrix of the case is that Shyam Narain - grand father of respondent Nos.4 to 6 took a loan from State Bank of India which was not repaid with the result recovery certificate was issued on 09.08.1985 by the bank to the Collector for realization of the amount. Writ of citation moved and being aggrieved writ petition No.10002/88 was filed permitting the borrower to pay the dues in installments but the amount was not deposited.

4. Sale proclamations issued and served on the borrower and after due publicity auction could not held. Again sale proclamation issued but this time also sale could not be held. On 01.12.1990 sale proclamation issued and respondent Nos.4 to 6 made application to the Sub Divisional Officer seeking time to deposit. Sale took place and on deposit of the amount, sale certificate issued in favour of the petitioner. Objections filed by the grand father of respondent No.4 to 6.

5. On 20.12.1992 respondent No.2 decided the objections and remanded the matter whereupon grand father of respondent Nos.4 to 6 filed a revision which was decided by respondent No.1 vide order dated 01.12.1994. On 02.05.1995, respondent No.2 dismissed the objections. On 31.10.1995 restoration application was dismissed. On 13.06.1996, revision filed by respondent Nos.4 to 6 dismissed by respondent No.1. On 23.11.2000 writ petition No.1688 (M/S) of 1996 was filed by respondent No.4 to 6 was allowed and case was remanded to respondent No.2

6. On 04.04.2001 objections were allowed by respondent No.2 and sale was set aside. On 29.03.2006 a revision filed by the petitioner was dismissed by respondent No.1. On 02.02.2001 respondent Nos.4 to 6 sold the earth to brickklin owner and on the application made by the petitioner respondent No.2 passed an order of injunction / Stay. On 26.05.1995, sale certificate was issued to the petitioner. Name of the petitioner was mutated in the revenue records.

7. Submission of learned Senior Counsel for the petitioner is that once the sale was affirmed, the Commissioner and Board of Revenue was having no jurisdiction to set aside the confirmation of sale. He submitted that on the ground of inadequacy of amount to be deposited in sale confirmation, cannot be a ground for setting aside the sale confirmation.

8. He next submitted that the order passed by the Commissioner and Board of Revenue are wholly without jurisdiction as it is not amenable to pass order on the ground which was not available to the petitioner. He submitted that in the impugned order finding has been recorded that there is no wide circulation of the auction sale, otherwise the price fixed would have been raised in case wide circulation was made. He submitted that this finding is perverse and without any basis. The petitioner being highest bidder was granted sale and it was confirmed. On this ground alone, the right of the petitioner cannot be curtailed.

9. He further submitted that the order passed by the