JAGAT PAL SINGH Vs. STATE OF U P

JUDGEMENT

(1.) K. C. Bhargava, J. The petitioner in this writ petition has prayed for quashing the orders dated 19-5-1976 passed by the Sub- Divisional Magistrate, Misrikh, Dis trict Sitapur, contained in Annexure-2, the order dated 7-5-1984 passed by the Commissioner, Lucknow Division, Luck-now, contained in Annexure-5 and for a further direction to the opposite parties not to implement the above said orders.

(2.) THE facts of the case, as stated hi the writ petition, are that one Parmeshwr Din took a loan from the State of Uttar Pradesh and mortgaged his land. He therefore, executed a sale-deed on 26th December, 1969 in respect of plot No. 580, measuring 2. 476 acres in favour of one Ram Singh and another sale- deed hi respect of plot No. 220 measuring 2. 68 acres in favour of Chaman Singh and Teji. Parmeshwar Din died without paying the government dues and therefore proceed ings for auction of the plots in dispute were started and were notified for recovery of the amount of loan. 10th February, 1976 was fixed for auction of the land in dispute and plot Nos. 580 and 220 were auctioned on 10-2-1976 which were purchased by the petitioner in the above public auction and the entire amount of the bid i. e. Rs 5,100/- was deposited by the petitioner in Government Treasury on 24-2-1976. Nobody else, ex cept one Srimati Sursata Devi who had no concern with the land in dispute, filed any objection. THE Sub- Divisional Officer, Misrikh, District Sitapur confirmed the auction by his order dated 19-3-1976 subject to the condition that if the objec tor, Srimati Sursata Devi, wanted to get the auctioned plots released then she would have to deposit the entire loan amount upto 25th March, 1976. A copy of this order is Armexure-1 to the writ petition. No amount was deposited by Srimati Sursata Devi upto 25-3-1976. On 1- 5-1976 Srimati Sursata Devi along with one Srimati Ramdei moved an application before the Sub- Divisional Officer, Mis rikh, distt. Sitapur alleging therein that the plots in dispute were auctioned at a very low price and therefore the auction be set aside. Smt. Ramdei also alleged that she had 1/2 share in plot No. 269 which had also been auctioned and there fore the auction was illegal. On 19-5-1976 the Sub-Divisional Officer, Misrikh, without giving any notice to the petitioner, set aside the earlier auction and directed re-sale of the plots in dispute. A copy of this order is Annexure-2 to the writ petition. THE petitioner moved an applica tion before the District Magistrate, Sitapur alleging that the Sub-Divisional Officer had no jurisdiction to cancel the auction which was confirmed nor he had any right to direct for re-sale of the plots in dispute. THE District Magistrate called for a report and in that report it was mentioned that the orders of the Sub-Divisional Officer was correct. On that the District Magistrate passed order on 19-6-1976 by merely writing "seen". THEre after the petitioner filed an appeal before the Commissioner, Lucknow Division, Lucknow but the same was also dismissed by the Commissioner on 12-7-1976. THE petitioner had not been given any notice by the Commissioner nor was he given any opportunity of hearing and behind his back a report was submitted by the Munsarim and on that report the Com missioner dismissed the revision as not maintainable. On 28-6-1976 the plots in dispute were again auctioned. Against the order of the Commissioner the petitioner filed Writ Petition No. 2073 of 1976 which was allowed and the Commissioner was directed to restore the revision of the petitioner at its original number and decide the same afresh. THE Commis sioner restored the revision and again dismissed the same on the ground that the revision was not maintainable on holding that as the land was auctioned at a very low price therefore it was rightly cancelled. A copy of this order is An-nexure-5 to the writ petition. It is alleged by the petitioner that before the Commis sioner a copy of Government Order No. 1/1/76 (2) (6) Rajaswa-7 dated 17-1-1976 was shown by him in which it was provided that all the Assistant Collectors and In-charge of Tahsils were authorised to sanction the auctions and therefore the first auction in favour of the petitioner was valid and the sanction order passed by the Sub-Divisional Officer was also in accordance with law. It was also raised before the Commissioner that after con firmation of the auction in favour of the petitioner he acquired rights and became necessary party and therefore he had the right to challenge the subsequent orders passed by the Sub- Divisional Officer setting aside the auction.

(3.) NOW we proceed to examine the provisions of Rule 285-1. This Rule gives a remedy to the person, whose property has been sold, to apply to the Commis sioner within a period of 30 days to get the sale set aside on the ground of some material irregularity or mistake in publish ing or conducting it. It further provides that no sale shall be set aside on such ground unless the applicant proves to the satisfaction of the Commissioner that he has sustained substaintial injury by reason of such irregularity or mistake. This shows that every irregularity or mistake in publishing or conducting the sale is not a valid ground for setting aside the sale and besides satisfying the Commissioner that some material irregularity or mistake has been committed in publishing and conducting the sale the person has further to satisfy the Commissioner that he has suffered some substantial injury by reason of such irregularity or mistake and if no substantial injury has been sustained by the person whose property has been sold then he cannot ask the Commissioner to set aside the sale and the Commissioner has no jurisdiction to set aside the sale on these grounds unless he is satisfied that the person whose property has been sold has sustained substantial injury by the irregularity or the mistake committed in publishing or conducting the sale.