Court No. 21
Civil Misc. Writ Petition (M/S) No. 195 of 1991
Madan Gopal and others
Hon'ble Sudhir Agarwal, J.
1. Heard Sri U.K. Srivastava, learned counsel for the
petitioner and learned Standing Counsel as well as Sri Ram
Keval Tripathi, Advocate for the respondents.
2. Auction sale of property of the petitioner has given rise to
the present writ petition under Article 226 of the Constitution of
India. The facts, in brief, are as under.
3. The petitioner obtained loan form the Bank for installing a
pumping set, but failed to repay it. In security of his loan, he
had mortgaged agricultural land measuring about 10.06 acres
situated at Village Roopnagar, ...view middle of the document...
He also submits that
the property worth several lacs of rupees has been sold on a
throw away price particularly when besides land, there existed
127 Shisham and 19 Babool trees.
5. In support of the submission that the auction sale could
have been confirmed only by Collector and not by the
Commissioner hence the entire proceedings are vitiated in law
and the Court must quash the entire proceeding, learned
counsel for the petitioner has placed reliance on a judgment of
this Court in M/s Swadeshi Polytex Limited Vs. Board of
Revenue and others, 2006(24) LCD 1 as well as the Apex Court
in Ambati Narasayya Vs. M. Subba Rao and another, AIR 1990
6. I have heard learned counsel for the parties and perused
7. The procedure of action of immovable property is
provided in Rule 285H,
I and J of 1952 Rules which read as
(1) Any person whose holding or other immovable
property has been sold under the Act may, at any time within
thirty days from the date of sale, apply to have the sale set
aside on his depositing in the Collector's office(
a) for payment to the purchaser, a sum equal to 5 per cent
of the purchase money; and
(b) for payment on account of the arrear, the amount
specified in the proclamation in Z.A. Form 74 as that for the
recovery of which the sale was ordered, less any amount
which may, since the date of such proclamation of sale, have
been paid on that account; and
(c) the costs of the sale.
On the making of such deposit, the Collector shall pass an
order setting aside the sale:
Provided that if a person applies under Rule 285I
to set aside
such sale he shall not be entitled to make an application
under this rule.
(2) Every application to set aside a sale under this rule and
the final order passed thereon shall be immediately reported
by the Collector to the Commissioner.
(i) At any time within thirty days from the date of the
sale, application may be made to the Commissioner to set
aside the sale on the ground of some material irregularity or
mistake in publishing or conducting it; but no sale shall be set
aside on such ground unless the applicant proves to the
satisfaction of the Commissioner that he has sustained
substantial injury by reason of such irregularity or mistake.
(ii) [* * *]
(iii) The order of the Commissioner passed under this rule
shall be final.
On the expiration of thirty days from the date of
the sale if no such application as is mentioned in Rule 285H
or Rule 285I
has been made or if such application has been
made and rejected by the Collector or the Commissioner, the
latter shall pass an order confirming the sale after considering
the declaration of oath obtained from the bidder and
forwarded by the Collector that the purchase of the land in
question by him would not lead to a violation of the
provisions of Section 154 of the Act. Every order passed under
this rule shall be final."
8. Evidently where an auction...