NARAYAN KUMAR AGARWAL Vs. BOARD OF REVENUE

JUDGEMENT

(1.) Heard Sri Manish Kumar Nigam, learned counsel for the petitioners, learned Standing Counsel for respondent nos.1 and 2 and Sri Deepak Kumar Jaiswal and Sri Sanjay Maurya, counsel for respondent nos.4 and 5.

(2.) Brief facts of the case are that there were certain sales take dues against the firm M/s Sudarshan Oil Mills Nasirabad, Padri Bazar, District- Gorakhpur for the year 1963-1964 to 1969-1970 for an amount of Rs.7764.57 + interest. Petitioners' father Manohar Lal was a partner in the aforementioned firm. Recovery proceeding for the sales tax of the aforesaid firm were initiated and an order of attachment was issued by the Collector on 22/7/1975 attaching double storied house belonging to petitioners' father. Thereafter a sale proclamation dtd. 2/9/1975 was issued by the Collector for the auction of the house belonging to petitioners' father fixing 7/10/1975 under Rule 282 of the U.P.Z.A. and L.R. Rules. Since 7/10/1975 was a holiday, hence auction could not take place on 7/10/1975. An auction was held on 8/10/1975 without issuing any fresh proclamation for holding auction. Six persons participated in the auction and out of six persons, Sri Durga Prasad was the highest bidder having made a bid of Rs.13,000.00. One Kanhaiya Lal S/o Mewa Lal Jaiswal (respondent no.5) moved an application on 8/10/1975 itself for purchase the house which was alleged to put on auction on 8/10/1975 for a sum of Rs.16,000.00. Durga Prasad who was the highest bidder has given "no objection certificate" to the application of respondent no.5. Petitioners who were minor at the time of auction and father of the petitioners was confined to bed, moved an application before the Collector, Gorakhpur raising his objection to the attachment / auction. A report dtd. 17/10/1975 in respect to the application / objection was submitted to the auction alleged to take place on 8/10/1975. 1/4th amount of the auction money i.e. Rs.4,000.00 was deposited by respondent no.5 on 8/10/1975 and the remaining 3/4th amount i.e. Rs.12,000.00 was not deposited by respondent no.5 within 15 days i.e. on or before 23/10/1975. Deputy Collector (Collection) Sales Tax, Gorakhpur issued a notice dtd. 27/10/1975 to respondent no.5 that he has not deposited Rs.12,000.00, as such, time was given to deposit the same by 28/10/1975, aforesaid application dtd. 27/10/1975 was received by respondent no.5 on 27/10/1975. Respondent no.5 did not deposit the remaining 3/4th amount rather moved an application on 28/10/1975 on which Deputy Collector passed an order dtd. 1/11/1975 mentioning that remaining amount is to be deposited within fifteen days form the date of auction and in case the same is not deposited, the money deposited earlier is to be forfeited. On 7/11/1975, respondent no.5 moved an application to deposit Rs.12,000.00 on which, Deputy Collector permitted him to deposit at his own risk. On 22/10/1975, petitioners' father- Manohar Lal moved an application requesting the Collector not to confirm the auction sale. A letter dtd. 1/11/1975 / 6/11/1975 issued by Deputy Collector (Collection) Sales Tax, Gorakhpur was served upon the petitioners in which it was mentioned that in pursuance of the application moved by the petitioners on 9/10/1975 and the application moved by petitioners' father- Manohar Lal, District Magistrate vide order dtd. 30/10/1975 passed an order for recovering the sales tax dues as per law. Petitioners' father- Manohar Lal received a letter dtd. 15/1/1977 through registered post to the effect that Additional Collector vide order dtd. 22/12/1975 has directed that sale certificate be issued in favour of respondent no.5. Petitioners' father, accordingly, filed an objection under Rule 285 I of the U.P.Z.A. and L.R. Rules on 7/2/1977 before the Commissioner, Gorakhpur Division, Gorakhpur along with the prayer for condonation of delay in filing the objection challenging the auction alleged to be held on 8/10/1975. On the objection of the petitioners' father under Rule 285 I of the U.P.Z.A. and L.R. Rules, the objections were filed by the State Government on 30/5/1977. Commissioner, Gorakhpur Division, Gorakhur vide order dtd. 15/6/1981 rejected the objections filed by the petitioners' father under Rule 285 I of U.P.Z.A. and L.R. Rules on the ground that the application has been filed after prescribed period of 30 days. Against the order dtd. 15/6/1981, a revision was filed by the petitioners before the Board of Revenue, Allahabad which was dismissed vide order dtd. 4/7/1981 on the ground that revision will lie before the Board of Revenue, Lucknow. Against the order dtd. 4/7/1981 passed by the Board of Board of Revenue, Allahabad. Petitioners' father filed writ petition No.8330 of 1981 before this Court in which interim order was passed to the effect that sale held in favour of other side shall not take effect provided petitioners deposit the entire amount. In compliance of the interim order dtd. 6/7/1981 passed by this Court, the petitioners deposited the entire amount. Writ Petition No.8330 of 1981 was finally heard and vide order dtd. 7/2/1994, writ petition was allowed, order dtd. 4/7/1981 was set aside and matter was remanded back before the Board of Revenue to decide the revision afresh. In the meantime, sale certificate has been issued on 7/6/1995 by the Deputy Collector (Collection) / Additional District Magistrate, Sadar, Gorakhpur in favour of respondent no.5. After remand order passed by this Court, revision has been heard afresh by the Board of Revenue and vide order dtd. 11/10/2021 revision was dismissed, hence this writ petition. This Court while entertaining the writ petition has passed the interim order dtd. 27/5/2022, which is as under:

(3.) In pursuance of the order dtd. 27/5/2022, respondent nos.4 and 5 has filed his counter affidavit along with an application for vacation of interim order, petitioners have filed their rejoinder affidavit also to the counter affidavit filed by respondent nos.4 and 5.