RAKESH KUMAR Vs. CHAIRMAN BOARD OF REVENUE

JUDGEMENT

(1.) HEARD Shri M.A. Khan, learned senior counsel for the petitioner and Shri T.N. Gupta, learned counsel for respondents no. 5 and 6 and L.Rs of respondent no.4. This is slightly unusual case. It is directed against the order dated 09.02.1994 passed by Board of Revenue Lucknow in reference no. 6 and 7 (Sale) of 1991 -92 Kishori Lal vs. Rakesh Kumar. Reference had been sent by Commissioner Moradabad through order dated 10.4.1990 passed in a revision (no.35 of 1989 -90 Kishori Lal vs. Rakesh Kumar) directed against order dated 27.12.1989 which was passed by the S.D.O. Nagina, Distt Bojnore. The SDO had passed the order for issuing certificate of sale on the application filed by Rakesh kumar. Copy of order of SDO Nagina, Distt. Bijnore dated 27.12.1989 is Annexure 9 to the writ petition. It was passed in case no.63/89, Rakesh Kumar vs. Kishori Lal. Prior to that on 05.5.1989, the SDO had passed the order of issuing sale letter. However, due to the stay order passed by the High Court on 16.5.1989 sale -deed had not been executed. The stay order was vacated on 02.12.1989 through order passed in W.P. No. 9603 of 1989 Kishori Lal vs. S.D.O.

(2.) THE case of Rakesh Kumar, petitioner was that he had purchased the agricultural land in dispute which belonged to Kishori Lal, since deceased and survived by original opposite parties no. 4 to 6 for Rs. 36,500/ - in an auction held on 11.10.1977. SDO Nagina, Distt Bijnore through order dated 27.12.1989 directed that order dated 05.5.1989 shall be complied with and sale certificate shall be issued and tehsildar shall execute the sale deed in favour of Rakesh Kumar for which he had already deposited request stamp paper. Order dated 05.5.1989 is annexure 10 to the writ petition. That order is only of seven lines. It was passed on the report of Naib Tehsildar. It states that on 28.4.1989, the date of 02.5.1989 was fixed for objections and thereafter 05.5.1989 was fixed but no objection had been filed. Thereafter, it was mentioned that SDO agreed with the report of Naib Tehsildar to the effect that auction purchaser had deposited the auction money and as other side was not present, hence, report was approved. Sale letter was directed to be issued. Thereafter, another order was passed on the same date to the effect that as the matter was of 1977, hence, the file must be sent to officer -in -charge collection in response to his letter dated 24.4.1989. Thereafter, sale certificate/ sale -deed was transcribed on stamp paper of Rs. 3500/ - and odd and registered on 28.12.1989. It was executed by Naib Tehsildar, Tehsildar and SDO.

(3.) THE Commissioner found that opportunity of hearing was not provided to the revisionist and there was some addition/alteration in the order dated 27.12.1989. It was further mentioned that from the re -constituted file it was not clear as to whether property had been attached or not and whether date of auction was properly advertised or not and whether deposit of auction money was made within time or not. Accordingly, Commissioner sent the reference to the Board of Revenue with the recommendation that revision should be allowed and order dated 27.12.1989 passed by SDO must be set -aside. The Board of revenue accepted the reference through order dated 09.02.1994. It fully agreed with the Commissioner and held that the alleged sale proceedings in favour of Rakesh kumar were of no legal validity. Accordingly order of the S.D.O. was quashed along with the consequent mutation order.