ARUN KUMAR Vs. STATE OF U. P.

JUDGEMENT

(1.) Heard Sri Pavan Kumar Srivastava, learned counsel for the petitioners, Sri Vineet Kumar Singh, learned counsel for private-respondent no.5 and learned Standing Counsel representing respondent nos. 1 to 4. By way of present writ petition, the petitioners have invoked extraordinary jurisdiction of this Court under Article 226 of the Constitution of India challenging the order dtd. 23/9/1975 passed by Commissioner, Allahabad Division, Allahabad and order dtd. 17/8/2021 passed by Board of Revenue, Allahabad rejecting the highly time barred restoration application dtd. 3/7/2019 filed against the order dtd. 30/9/1986 passed in Revision No. 106 of 1975-76/Fatehpur. Facts culled out from the averment made in the writ petition are that proceeding has been initiated for realization of the loan amount as land revenue. The property of Sankata Prasad (father of present petitioners) was sold in auction sale dtd. 25/7/1974 in favour of Balbir (respondent no.5). Feeling aggrieved against the said auction sale, Sankata Prasad had filed objection under Sec. 281 of U.P.Z.A. and L.R. Act read with Rules 285-I and 285-J of U.P.Z.A. and L.R. Rules, inter alia, on the grounds that the share of Sankata Prasad is only 1/4 but auction had illegally been taken place showing his half share (1/2) in the property in question. The objection filed by Sankata Prasad was rejected by order dtd. 23/9/1975 passed by Commissioner, Allahabad Division, Allahabad on the basis of the report of Lekhpal and other documents, showing the ownership of the Sankata Prasad to the extent of half share (1/2) in the property in question, therefore, auction sale dtd. 25/7/1974 was held valid with respect to his half share. Having been aggrieved against the order dtd. 23/9/1975, Sankata Prasad had preferred revision being Revision No. 106 of 1975- 76/Fatehpur before the Board of Revenue, which was also dismissed vide order dtd. 30/9/1986. After the death of Sankata Prasad, his sons (the present petitioners) have filed highly belated restoration application dtd. 3/7/2019, which was rejected being time barred vide order dtd. 17/8/2021 passed by Board of Revenue, which is under challenged in the present writ petition.

(2.) It is submitted by counsel for the petitioners that more than the valid share of Sankata Prasad had been put to auction sale, but the same has illegally been ignored by the court below and unfortunately, restoration application, filed on behalf of present petitioners was rejected on the ground of latches. After the death of Sankata Prasad on 4/11/2018, while the contesting respondent has tried to sell the property in question, petitioners came to know about the entire facts. It is further submitted that the petitioners could not know the previous proceeding, therefore, they could not file the restoration application within time. Orders passed by the Board of Revenue are illegal and suffers from infirmity and irregularity, therefore, these orders should be quashed and one opportunity should be given to the petitioners to defend their case.

(3.) Per contra, learned counsel appearing on behalf of respondent no.5 (auction purchasers) contended that the orders dtd. 23/9/1975 and 30/9/1986 were passed in the presence of Sankata Prasad (father of the petitioners). It is evident from the perusal of the aforesaid orders, which are annexed as annexure-3 and 5 respectively to the writ petition, that the auction sale has already attained finality in the year 1974 and after such a belated stage there is no justification for challenging said auction proceedings. It is further contended that since 1974, respondent no.5 is in the possession over the property in question and all rights pertains to the subject matter of auction sale, are vested with him. No sufficient ground has been assigned by the petitioners in filing the restoration application at a belated stage. The impugned orders passed by Board of Revenue and Commissioner, Allahabad Division, Allahabad requires no interference by this Court and the present writ petition is liable to be dismissed with cost. Having considered the rival submissions advanced by learned counsel for the parties and pleading on record, it is a admitted position to both the parties that auction proceeding took place for realization of the loan amount, as a land revenue, and the property of Sanakata Prasad was put to auction sale on 25/7/1974. So far as the share of the Sankata Prasad in the subject matter of auction proceeding is concerned, Commissioner and the Board of Revenue, vide their orders dtd. 23/9/1975 and 20/9/1986 respectively, have recorded concurrent finding that the Sankata Prasad was entitled for half share in the property in question. Finding of facts given by them was supported by the report of the Collector and the Lekhpal. In the sale proclamation half ( 1/2) share of Sankata Prasad was stipulated. The Board of Revenue has also emphasized one another aspects of the matter that the other co-sharers in the property in question did not come forward against the auction sale claiming their right and title over the subject matter of auction sale, who may have affected due to auction of property more than the valid share of Sankata Prasad as stated by him. There is nothing on record to show that any other co-sharer of the subject matter of the auction proceeding came forward to contest the case claiming his right/title over the property in question. As per the case of the petitioners, their father was alive from 30/9/1986 to 4/11/2018, but during these long period, he had never made any endeavour to challenge the order dtd. 30/9/1986 in his life time. This Court note with utmost surprise how affected person (Sankata Prasad) had shown his ignorance when orders passed against him came to this serious and dangerous consequence prejudicing his right and title over the property in question. Prima facie, it appears that after the death of Sankata Prasad (father of present petitioners), dishonesty prevailed in their mind and they deliberately moved a restoration application dtd. 3/7/2019 at a belated stage on very flimsy grounds. Auction sale dtd. 25/7/1974 has already attained finality and, at this juncture, there is no justification to interfere in the aforesaid auction proceeding, after such a long time. No sufficient and justifiable ground has been offered to explain such inordinate delay in filing the restoration application at the behest of the petitioners, who are claiming their right/title over the property in question being sons of Sanakata Prasad. On the face of it restoration application appears to be misconceived and devoid of merits.